House of Lords House of Commons Joint Committee on Human Rights Commission for Equality and Human Rights: The Government's White Paper
Sixteenth Report of Session 2003–04
HL Paper 156 HC 998
House of Lords House of Commons Joint Committee on Human Rights Commission for Equality and Human Rights: The Government's White Paper
Sixteenth Report of Session 2003–04
Report, together with formal minutes and appendices
Ordered by The House of Lords to be printed 21 July 2004 Ordered by The House of Commons to be printed 21 July 2004
HL Paper 156 HC 998 Published on 4 August 2004 by authority of the House of Lords and the House of Commons London: The Stationery Office Limited £0.00
Joint Committee on Human Rights
The Joint Committee on Human Rights is appointed by the House of Lords and the House of Commons to consider matters relating to human rights in the United Kingdom (but excluding consideration of individual cases); proposals for remedial orders, draft remedial orders and remedial orders.
The Joint Committee has a maximum of six Members appointed by each House, of whom the quorum for any formal proceedings is two from each House.
Current Membership
HOUSE OF LORDS HOUSE OF COMMONS Lord Bowness Mr David Chidgey MP (Liberal Democrat, Eastleigh) Lord Campbell of Alloway Jean Corston MP (Labour, Bristol East) (Chairman) Lord Judd Mr Kevin McNamara MP (Labour, Kingston upon Hull) Lord Lester of Herne Hill Mr Richard Shepherd MP Lord Plant of Highfield (Conservative, Aldridge-Brownhills) Baroness Prashar Mr Paul Stinchcombe (Labour, Wellingborough) Mr Shaun Woodward MP (Labour, St Helens South)
Powers The Committee has the power to require the submission of written evidence and documents, to examine witnesses, to meet at any time (except when Parliament is prorogued or dissolved), to adjourn from place to place, to appoint specialist advisers, and to make Reports to both Houses. The Lords Committee has power to agree with the Commons in the appointment of a Chairman.
Publications The Reports and evidence of the Joint Committee are published by The Stationery Office by Order of the two Houses. All publications of the Committee (including press notices) are on the internet at www.parliament.uk/commons/selcom/hrhome.htm. A list of Reports of the Committee in the present Parliament is at the back of this volume.
Current Staff The current staff of the Committee are: Paul Evans (Commons Clerk), Nicolas Besly (Lords Clerk), Murray Hunt (Legal Adviser), Róisín Pillay (Committee Specialist), Duma Langton (Committee Assistant) and Pam Morris (Committee Secretary).
Contacts All correspondence should be addressed to The Clerk of the Joint Committee on Human Rights, Committee Office, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general inquiries is: 020 7219 2467; the Committee=s e-mail address is [email protected].
Commission for Equality and Human Rights: The Government’s White Paper 1
Contents
Report Page
Summary 3
1 Introduction 5 The case for a human rights commission 5 Our previous report on the proposed Commission 5 The White Paper 6 Areas of difference 7
2 General mandate of the Commission 8 Areas of consensus 8 Protection of human rights 8 International obligations 9 The public and private sectors 9 Public sector duties 10
3 Powers 11 Areas of consensus 11 General powers 11 General inquiries 11 Litigation and related powers 13 Third party interventions 13 Friend of the court 14 Judicial review 14 Supporting individual cases 15 Alternative dispute resolution 16
4 Governance, accountability and independence 18 Areas of consensus 18 State institutions supporting democracy 18
5 Conclusion 22
Formal Minutes 23
Appendices 24 1. Letter from David Lammy MP, Parliamentary Under Secretary of State, Department for Constitutional Affairs 24 2. Letter from Rt Hon Patricia Hewitt MP, Secretary of State for Trade and Industry, Department of Trade and Industry 24 3. Memorandum from the Disability Rights Commission 25 4. Memorandum from the Equal Opportunities Commission 31 5. Memorandum from the British Humanist Association 34 6. Memorandum from JUSTICE 36 7. Memorandum from the Law Society 39
8. Memorandum from Mr Samuel Budu 43 9. Memorandum from Francesca Klug, Professorial Research Fellow, and Claire O’Brien, Research Fellow, Centre for the Study of Human Rights, London School of Economics 46 10. Memorandum from the Institute for Public Policy Research 54
Reports from the Joint Committee on Human Rights since 2001 61
Commission for Equality and Human Rights: The Government’s White Paper 3
Summary
The Government proposes to establish a new Commission for Equality and Human Rights. This is in line with the recommendation the Joint Committee on Human Rights made in its report on the case for a human rights commission in March 2003.
The Government published a White Paper in May setting out its proposals for the role, duties and powers of this new body, which it is anticipated will begin its work in 2006, subject to the passage of the necessary legislation.
Just before the Government published its White Paper, the Joint Committee on Human Rights published a report setting out its own recommendations on the functions, powers and structure of the new commission so far as they relate to human rights.
In this report, the Committee compares the proposals of the White Paper with its own recommendations.
The Committee notes that there is agreement between it and the Government on most of the fundamental principles of the design of the Commission. However, the Committee identifies the following areas of divergence and raises questions in relation to them.
The precise nature of the general duty to be placed upon the CEHR in relation to the promotion and protection of human rights;
the details of the power of the Commission to conduct “general inquiries” into matters connected with human rights;
the case for introducing a public sector duty in relation to human rights;
the details of the scope of and restrictions on the power of the Commission to support individual cases in the courts in which discrimination and human rights issues are raised;
the facilitation of alternative dispute resolution in human rights cases by the Commission;
the case for giving the Commission power to seek judicial review of the policies, actions and omissions of public authorities under the Human Rights Act;
institutional and funding arrangements to secure the independence and accountability of the new body.
The Committee anticipates that the Government will address these remaining areas of difference before it introduces the legislation to establish the Commission for Equality and Human Rights.
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1 Introduction
The case for a human rights commission 1. We reported in March 2003 on The Case for a Human Rights Commission.1 We found the case for the establishment of a human rights commission in Great Britain compelling, and concluded that—
… an independent commission would be the most effective way of achieving the shared aim of bringing about a culture of respect for human rights.
2. On 30 October 2003, the Government announced its intention of proceeding with the establishment of a new body, which would take over the responsibilities of the Commission for Racial Equality, the Equal Opportunities Commission and the Disability Rights Commission; which would take on enforcement and promotion responsibilities in relation to the legislation making unlawful unfair discriminatory treatment of people with regard to age, religion or belief and sexual orientation; and which would have responsibilities for the promotion of human rights. This is the model we had favoured in our own report.
Our previous report on the proposed Commission 3. We reported again in May 2004 on the Commission for Equality and Human Rights: Structure, Functions and Powers.2 In relation to the functions of the new body, our report recommended that the Commission: a) should have a widely drawn remit in respect of the promotion of a culture of respect for human rights, going beyond the Convention rights incorporated into UK law by the Human Rights Act; b) should have a role in reporting on the UK’s discharge of its international human rights obligations; c) should be focused on achieving strategic change through promotion, advice, the spreading of best practice and the raising of public awareness; d) should not, for the most part, be directly involved in the resolution of individual cases; e) should have as its key role working with the public sector to give practical effect to a culture of respect for human rights in the policy and practice of providers of public services, and that this should be achieved through close co-operation with the bodies charged with regulating, auditing and inspecting the quality of public services;
1 Sixth Report, Session 2002–03, The Case for a Human Rights Commission, HL Paper 67-I and II, HC 489-I and II; see also Twenty-second Report, Session 2001–02, The Case for a Human Rights Commission: Interim Report, HL Paper 160/HC 1142. 2 Eleventh Report, Session 2003–04, Commission for Equality and Human Rights: Structure, Functions and Powers, HL paper 78/HC 536.
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f) should also be able to guide and advise the private sector on the development of a culture of respect for human rights; g) should have a duty to build the capacity of the private and voluntary sectors to advise and assist individuals in understanding and asserting their rights; h) should promote alternative dispute resolution as a way of avoiding litigation and pre- empting violations of rights; i) should have a general duty to promote good relations between communities and groups within Great Britain based on respect for the values of human rights so as to encourage the peaceful resolution of disputes;
We also recommended that these functions should be underpinned by a general statutory duty on public authorities to promote human rights.
4. In relation to powers, we recommended in particular that the Commission: a) should be able to conduct public inquiries into matters of public policy relating to human rights, and should have the ancillary powers needed to make these inquiries effective; b) should have the power to assist as a friend of the court or to intervene as a third party in significant cases raising questions of public interest relating to human rights; c) should have an exceptional power to seek judicial review on compliance by public authorities with their duties under the Human Rights Act.
5. In relation to the new body’s structure, we recommended that the commissioners should be appointed with the involvement of Parliament, and should not be chosen as “champions” of particular strands of the commission’s responsibilities. We also recommended special arrangements to guarantee the independence of the commission as a constitutional watchdog, while also securing its democratic accountability. These included proposals for a special relationship between the commission and Parliament.
6. Finally, we concluded that the arrangements which were to be put in place should be regarded as transitional, until Parliament enacts a single, comprehensive Equality Act.3
The White Paper 7. A week after our report was published the Government’s White Paper Fairness for All: A New Commission for Equality and Human Rights4 was published. In it, the Government set out its proposals for the role, duties and powers of the proposed Commission, based on the work of the Taskforce which was established in December 2003 to advise it.
3 The Government’s formal response to the Eleventh Report (Cm 6295) was presented to Parliament on 21 July, after this report was agreed. 4 Cm 6185.
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8. We are pleased to note that there is a great deal of agreement between our report and the White Paper. We consider that the Government’s proposals represent a reasonable scheme on which to base the detailed design of the new body. However, there are some areas of disagreement between our proposals and those of the Government, and the purpose of this short report is to highlight these.
9. We invited comment on the areas of difference between our proposals and those of the Government. We received a number of submissions, which are printed as Appendices to this report. We are grateful to those organisations and individuals who took the time to write to us.5
Areas of difference 10. In this report we consider the areas of divergence between the White Paper and our own report. These appear to be principally: a) the precise nature of the general duty placed upon the CEHR in relation to the promotion and protection of human rights; b) the details of the power of the Commission to conduct “general inquiries” into matters connected with human rights; c) the case for a “positive” or “public sector” duty in relation to human rights; d) the scope of the right of the Commission to support individual cases, in particular “mixed cases” in which both discrimination and human rights issues arise; e) the power of the Commission to seek judicial review of the policies, actions and omissions of public authorities under the Human Rights Act; f) facilitation by the Commission of alternative dispute resolution in human rights cases; g) the institutional and funding arrangements to secure the independence and accountability of the new body.
We now examine these in turn.
5 See list of Appendices p. 1.
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2 General mandate of the Commission
Areas of consensus 11. In general we welcome the wide areas of agreement between our proposals for the functions of the Commission and those of the Government. We welcome in particular the proposals relating to the spreading of good practice in the public sector, working with the private sector, capacity building in the voluntary sector and amongst independent legal practitioners, promoting human rights education, and working through existing agencies to give leverage to the efforts of the Commission. We are pleased to note the prominence given to the task of promoting good community relations through a human rights framework. We look forward to examining the detail of these functions when they emerge as definite legislative proposals.
Protection of human rights 12. Paragraph 3.9 of the White Paper states that the CEHR “will promote awareness and understanding of human rights”. It goes on to say that the Commission will “spread good practice and promote support for human rights throughout the public sector”, including in bodies carrying out public functions and services.6
13. We fully support these aims, and agree that “promotion will be central to the CEHR’s human rights role”,7 but we remind the Government that we said in our Report that the new body should be given the general duty “to promote understanding and awareness, and to help secure the protection, of human rights in Great Britain”.8 It would not be sufficient if the mandate of the new commission were to be without reference to helping to secure the protection of these rights, or if this aspect of its mandate were to be couched as a function rather than a duty.9 We consider this to be an essential element of its work. The mandate of the South African Human Rights Commission, which we recently visited, provides a good model. It is to—
… promote respect for human rights and a culture of human rights; promote the protection, development and attainment of human rights; and monitor and assess the observance of human rights in the Republic.10
6 Seventh Report, Session 2003–04, The Meaning of Public Authority under the Human Rights Act, HL Paper 39/HC 382. 7 Cm 6185, para. 3.15. 8 Eleventh Report, Session 2003–04, op cit., para. 14. 9 See for example the comments of Francesca Klug and Claire O’Brien, Appendix 9, para. 2.1. 10 South African Constitution, Chapter 9, Article 184.
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International obligations 14. Paragraphs 3.12 to 3.14 of the White Paper discuss the human rights which will form the basis of the Commission’s mandate. We have no quarrel with the statement that the Convention rights within the meaning of the Human Rights Act will form the “core” of the Commission’s work in this area.11 We are pleased to note that the White Paper acknowledges the rights and obligations contained in other human rights instruments, and confirms that the Commission will address human rights in a broad, inclusive sense.12
15. These proposals are consonant with our own recommendations.13 However, we would not want the mandate of the Commission to emphasise an apparent hierarchy of human rights obligations. The Convention rights do have a special status following incorporation; to some extent this places a special obligation on the Commission to raise awareness of the other international instruments. It should have an express power to participate in the reporting processes relating to these treaties.14 We would stress in particular the valuable role we envisage the Commission could play in enhancing awareness of these obligations within Government, and in improving the level of attention given to the requirements to report under most of these treaties on the extent to which the UK is taking steps to advance compliance.15
The public and private sectors 16. A submission to our inquiry noted an inconsistency in the White Paper’s references to working with the private sector.16 At paragraph 3.9 it refers to “private sector bodies carrying out public functions and services”. At paragraph 7.38 it refers to bodies “contracted to carry out or deliver services to the public”. We discussed the issue of the application of the duty under section 6 of the Human Rights Act at length in a recent report.17 We would emphasise again that it is the nature of the function, not the nature of any contract, that should determine the application of the Act. The ambit of the CEHR should be interpreted similarly.
11 Cm 6185, para. 3.14. 12 Cm 6185, para. 3.13. 13 Eleventh Report, Session 2003–04, op cit., paras. 15–22. 14 Appendix 9, para. 2.4. 15 The UK has an obligation to submit periodic reports under the UN Covenant on Civil and Political Rights (ICCPR); the UN Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Elimination of All Forms of Racial Discrimination (CERD); the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); the UN Convention Against Torture (CAT); the UN Convention on the Rights of the Child (CRC) and the European Social Charter. 16 Appendix 9, para. 2.2. 17 Seventh Report, Session 2003–04, op cit.
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Public sector duties 17. In our report, we concluded that we were persuaded that imposing a “positive” or “general” public sector duty to promote human rights would be an effective way of advancing a culture of respect for human rights and of ensuring greater focus by public authorities on their positive obligations to protect human rights. It would also—
… provide a firm statutory foundation for the framework within which the new commission would operate, giving it a very clear role in the articulation of guidance for the implementation of the duty. Requiring public authorities to assess all of their functions and policies for relevance to human rights and equality, and in the light of that assessment to draw up a strategy for placing human rights and equality at the heart of policy making, decision making and service delivery, would be an effective way of achieving the mainstreaming of human rights and equality which will be one of the commission’s principal purposes.18
We note that the Government’s White paper does not deal with the introduction of a public sector duty relating to human rights, and we recommend that the Bill does so.
18. We are pleased to note the undertaking in the White Paper to introduce public sector duties, similar to that in the Race Relations (Amendment) Act, in relation to equality of opportunity for disabled people and between men and women.19 However, we see no reason why similar duties should not be introduced in the new Bill covering all the strands of prohibited discrimination. Obviously there will need to be adjustments for particular strands such as sexual orientation and religious discrimination where issues of personal privacy will arise but subject to that, there is a need for equal protection for all.
18 Eleventh Report, Session 2003–04, op cit., para. 32. 19 Cm 6185, paras. 7.56 to 7.58.
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3 Powers
Areas of consensus 19. The White Paper proposes that, in relation to its human rights functions, the Commission will have power to undertake “general inquiries” but not “named inquiries” such as those presently available under the anti-discrimination laws. We have some concerns about the detail of this power which we discuss below.
20. It also proposes that the Commission should not have powers to support individuals in taking freestanding Human Rights Act cases to court, or to take class actions. This is in line with our own recommendations. However, we emphasise the importance we attach to there being put in place effective arrangements between the CEHR and the Legal Services Commission to ensure that human rights cases are accorded appropriate priority in funding legal aid.20
21. The White Paper proposes that the Commission will have power to act as a third-party intervener in the courts, and to support cases where human rights issues arise as well as discrimination issues. We consider these, and other issues relating to litigation, below.
General powers 22. We considered the question of express and implied powers in relation to the Northern Ireland Human Rights Commission in a report last year,21 to which the Government has still not responded. We draw the lesson from that experience that there is a need to make many powers of the Commission express in the legislation. We recognise, however, that there could be merit in ensuring that it does not need to have constant recourse to the courts for clarification of its powers by conferring upon the Commission all the powers reasonably incidental to or consequential upon its express powers.22
General inquiries 23. The White Paper proposes that the Commission will “have a power to carry out general inquiries into issues of public interest relevant to the groups protected by discrimination legislation and to human rights”.23 This is in line with our proposals for what we called “public inquiries”.24
20 Eleventh Report, Session 2003–04, op cit., para. 70. 21 Fourteenth Report, Session 2002–03, Work of the Northern Ireland Human Rights Commission, HL Paper 132/HC 142, paras. 60–62. 22 Appendix 9, para. 4.3. 23 Cm 6185, para. 4.3. 24 Eleventh Report, Session 2003–04, op cit., paras. 48–54.
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24. The White Paper says that the CEHR will be able to initiate these inquiries either independently “or at the request of the Secretary of State”.25 We have the gravest doubts whether it is compatible with the status of an independent national human rights institution to be subject to any form of statutory direction by Ministers regarding the initiation of its inquiries. In our report we recommended that—
It should be open to a Minister to ask the commission to undertake such an inquiry, and to make his request publicly, but not to require an investigation.26
We note that the Law Society considers that even this is conceding too much to Ministers.27
25. The White Paper says that “to ensure that it can obtain sufficient information to conduct a thorough and useful investigation, the CEHR will be able as a last resort to apply to the Secretary of State to compel third parties to provide certain information relevant to the inquiry”.28 This is not satisfactory. Human rights inquiries will almost always be into the activities of state agencies, as it is public authorities which are bound by section 6 of the Human Rights Act to act compatibly with Convention rights. For the Commission to have to rely on ministerial sanction to be able to pursue general inquiries effectively would be wholly inappropriate. In our previous report we recommend a power to compel evidence similar to that possessed by the EOC and CRE currently, but subject to judicial supervision. Alternatively, a power similar to that given to the new Children’s Commissioner to have reasonable access to information might suffice.29 It would be judicially reviewable, as the Law Society suggest.30
26. We remain convinced of the importance of adequate investigatory powers to the efficacy and credibility of the new Commission. This conviction has been strengthened by our recent discussions with the South African Human Rights Commission, which has powers to call for persons and papers, and to enter and search premises.31 The Commission emphasised to us that it saw these powers as extremely important. It had used its powers on occasion to require information from government departments, and to subpoena provincial government leaders, a Cabinet Minister and the head of the defence force. The Commission had also found it necessary to use its powers of entry, on one occasion, to gain access to private sector premises. The South African Commission has used its powers only rarely and as a last resort. It also noted that it found it necessary to use its powers less and less as it became known that it held these powers in reserve and would use them if necessary.
25 Cm 6185, para. 4.5. 26 Eleventh Report of Session 2003–04, op cit., para. 55. 27 Appendix 7. 28 Cm 6185, para. 4.6. 29 Clause 2 (5) and (6) of the Children Bill as amended by the House of Lords on report state: “(5) The Children’s Commissioner or a person authorised by him may for the purposes of his function under this section at any reasonable time— (a)enter any premises, other than a private dwelling, for the purposes of interviewing any child accommodated or cared for there; and(b) if the child consents, interview the child in private. (6) Any person exercising functions under any enactment must supply the Children’s Commissioner with such information in that person’s possession relating to those functions as the Children’s Commissioner may reasonably request for the purposes of his function under this section (provided that the information is information which that person may, apart from this subsection, lawfully disclose to him).”. 30 Appendix 7. 31 Human Rights Commission Act 1994, sections 9 and 10.
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27. The White Paper is silent on what might be the outcome of such general inquiries in terms of reports and recommendations, and how these might be dealt with. We said in our report that—
Where the Commission did, in the course of an inquiry, identify practices which appeared to have led, or appeared likely to lead, to breaches of the Convention rights, it should have power to identify the actual or potential violations occurring and to make recommendations as to changes in practice or in the law which it considered necessary or desirable.32
Similar points have been raised in relation to the inquiry powers of the Children’s Commissioner proposed under the current Children Bill.33 It will not, we believe, be sufficient to leave the Commission’s inquiry powers hanging in mid-air.
28. Francesca Klug and Claire O’Brien raise the issue of how human rights issues which emerge in the course of a “named investigation” under anti-discrimination powers should be dealt with, given that the White Paper does not give the Commission power to launch named investigations in relation to alleged breaches of human rights. In particular, they note that human rights matters should not be excluded from the Commission’s follow-up action to named investigations.34 We agree that this matter requires urgent consideration. We draw further attention to our conclusion in our previous report on general inquiries and human rights—
We emphasise that the power to conduct public inquiries which we propose should be a novel, free-standing power in relation to matters of public policy which engage human rights, not dependent on equality issues being engaged and the use of the existing anti-discrimination powers that will be vested in the new commission.35
Litigation and related powers
Third party interventions 29. The White Paper proposes, as we recommended, that the Commission should have the explicit ability to intervene as a third party in cases at the invitation of the court.36 It appears to qualify this by saying that “intervention in human rights cases would be intended to support the development of a flourishing human rights culture in the public sector”.37 We have no quarrel with this as a general statement of purpose. However, we would object to this qualifying statement if it is intended to limit the ability of the Commission to intervene in human rights cases, or to draw a distinction between interventions in human rights cases and equality cases. Furthermore, such qualifications, if established by statute, might interfere with the discretion of the courts to regulate process.
32 Eleventh Report, Session 2003–04, op cit., para. 54. 33 See for example HL Deb, 15 July 2004, cc. 1443–1451; see also Appendix 9, para. 4.2. 34 Appendix 9, para. 3.4. 35 Eleventh Report, Session 2003–04, op cit., para. 52. 36 Cm 6185, para. 4.11. 37 ibid., para. 4.13.
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Friend of the court 30. The White Paper points out that no express power to act as an amicus curiae or friend of the court is needed by the Commission, and that the ability to intervene as a third party will be sufficient in most cases.38 We accept that an express statutory power to act as an amicus should not be necessary, on the understanding that the courts may request the CEHR to act as an amicus in an appropriate case.
Judicial review 31. The White Paper is silent on the question of whether the Commission should have any judicial review power in relation to human rights. It does refer to something which it describes as “hypothetical cases”,39 but we take this to refer to attempts to settle abstract theoretical legal propositions rather than action to avert or remedy a violation of Convention rights. As we pointed out in our previous report, there is a particular problem which arises in relation to judicial review by the Commission with regard to the Human Rights Act, as opposed to anti-discrimination legislation, because of the “victim test”, given statutory form in section 7 of the HRA.
32. We considered this issue at some length in our earlier report. We repeat our conclusions here—
… we are now more persuaded that account should also be taken of the preventative benefits of permitting judicial review of this kind—before individuals are victimised. In the long run it could help forestall more demand on court resources which would be required to deal with less well-informed and more partial challenges. The bringing of one focused claim by a body such as the commission might actually prevent the courts from being unduly burdened. And, as we have said above, an inquiry power without the long-stop of any enforcement mechanism (or route to test the findings in the courts) would, we believe, be very damaging to the credibility of the commission. Finally, and perhaps most importantly, we have now concluded that there is a wider public interest in ensuring that public authorities comply with the law. It would be an indefensible situation in which a commission set up for the express purpose of promoting and protecting human rights was able to identify what it believed were threats to those rights, and no steps were available to it to remove those threats.
We recommend that the commission should have a power, notwithstanding the provisions of section 7(3) and (4) of the Human Rights Act, to seek judicial review of the policies or actions or omissions of a public authority where it has reason to believe that such policies or actions or omissions have resulted, or are likely to result, in a violation of the Convention rights.
We consider that it would be desirable to achieve this aim by amending section 7 of the Human Rights Act itself (to allow only the new commission to bring cases in which there is no individual victim), rather than conferring an express power on the CEHR in its parent statute. The latter approach requires the Human Rights Act to be read alongside later legislation impliedly amending it, which may be thought to be inconsistent with its status as a constitutional statute setting out in one place the legal
38 ibid., para. 4.41. 39 ibid., para. 4.43.
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regime for the vindication of fundamental rights. However, it would also be possible to achieve this objective through a provision in the new commission’s founding legislation.40
33. With one notable exception,41 almost all respondents to our calls for evidence have given general consent to this proposition. The EOC believed—
… that the power to seek judicial review in this way is a fundamental tool in the promotion of human rights as a framework of core values and in monitoring the workings of the HRA.42
34. We remain convinced that it will be essential to give the power to seek judicial review under the Human Rights Act to the Commission for Equality and Human Rights. Without it, it will be neutered.
Supporting individual cases 35. The White Paper states that the Commission will have explicit powers only to support individual cases under anti-discrimination legislation, not under the Human Rights Act.43 This is broadly in line with our own recommendations,44 though we stressed that we believed that—
… the new commission must be able to address some instances of discrimination which are not covered by any of the six strands. We consider that a power to invoke the human rights dimension should be considered to be implicit in the new commission’s litigation and enforcement powers relating to its equality functions—if this is in doubt, then the legislation should be so framed as to ensure that the CEHR can rely confidently upon the Human Rights Act in relation to the Convention rights related to those functions.45
36. However, the White Paper also asks “whether the CEHR should be able to continue support for cases which have drawn on both discrimination and human rights arguments, after the discrimination element of the case has fallen away?”46 We considered this matter in our own report. We concluded—
In our view it would … be perverse to seek to prevent the new commission, which will contain a specific human rights function, from being able to rely directly on the Human Rights Act. It would also run contrary to the general scheme of the Human Rights Act, which has an impact on all legislation and all public authorities. The new commission should therefore be able to use the Human Rights Act in any anti- discrimination case when the facts indicate a relevant breach of human rights. The CEHR must be able to fund “mixed” cases. But where the case fails in relation to its founding anti-discrimination argument but is left with an argument based on the Convention rights which is relevant to the new body’s strategic interests, it would we
40 Eleventh Report, Session 2003–04, op cit., paras. 91–93. 41 JUSTICE, see Appendix 6, para. 13. 42 Appendix 4. 43 Cm 6185, para. 4.18. 44 Eleventh Report, Session 2003–04, op cit., para. 68. 45 ibid., para. 76. 46 Cm 6185, p 16.
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believe be quite wrong for the commission to be required to abandon support for a case where the facts continued to disclose a breach of human rights (for example where someone had successfully defended the anti-discrimination part of a case on the basis that he or she had meted out bad treatment to everyone indiscriminately). We consider that a power to invoke the human rights dimension should be considered to be implicit in the new commission’s litigation and enforcement powers relating to its equality functions—if this is in doubt, then the legislation should be so framed as to ensure that the CEHR can rely confidently upon the Human Rights Act in relation to the Convention rights related to those functions.47
We welcome the confirmation in the White Paper that the CEHR will be able to support “mixed” cases, where both discrimination and human rights points arise. In such cases, it may occasionally happen that the discrimination argument will fall away, but the human rights element of the case remain. We emphasise that, although these circumstances are likely to arise only rarely, the interests of justice for the applicants in such cases require that the Commission should have the capacity to continue to support the case.
Alternative dispute resolution 37. The White Paper states “Consistent with the approach proposed for supporting [freestanding Human Rights Act] litigation, it is not envisaged that the CEHR’s conciliation service will be available for freestanding Human Rights Act cases”.48
38. We find this statement baffling. We do not understand why the availability of legal aid for Human Rights Act cases, and the desirability of a single funding source would be relevant to the provision of conciliation services. The DRC described its own experience of facilitating conciliation as “generally encouraging”.49 The EOC commented—
The Joint Committee … saw [a general power to support alternative dispute resolution approaches to allegations of breaches of human rights by public authorities] as a quid pro quo for the restriction on support for individuals bringing human rights cases. The White Paper, however, proposes that the CEHR will be empowered to arrange for the provision of conciliation services in disputes related to discrimination in the provision of goods, facilities, services and education … The reason given for this distinction is that it is consistent with the approach proposed by the White Paper for supporting HRA litigation, i.e. since human right issues can already be raised in any court or tribunal and legal aid may be available, there is no requirement for the CEHR to support cases under the HRA. It is not clear why the availability of a litigation route to resolving a dispute should preclude the provision of a conciliation service. The approach in other areas, for example in the employment sphere, is to encourage alternative dispute resolution even where there is a readily accessible route to litigation through the Employment Tribunal. The limitation of a conciliation service to discrimination cases or discrimination cases with a human rights dimension would lead to a difference in treatment of an individual’s dispute based on the technical label applied to it … the EOC is concerned that distinctions of this kind will hamper the
47 Eleventh Report, Session 2003–04, op cit., paras. 75 and 76. 48 Cm 6185, para. 4.22. 49 Appendix 3.
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effectiveness of the CEHR in achieving a holistic approach to equality and human rights and, on a more specific level, may lead to legal challenges and technical hurdles to the resolution of disputes involving the rights of individuals.50
We entirely agree with the EOC’s analysis. We could understand the argument that, if the provision of such services were to draw the Commission directly into dealing with individual complaints, then it would run contrary to the strategic vision of the Commission. But that argument is not articulated. We do not think it would be likely to apply.
39. We said in our report that—
… a general power to support alternative dispute resolution approaches to allegations of breaches of human rights by public authorities would be a valuable ancillary to the commission’s general duty to promote a culture of respect for human rights. As with the DRC, it should be explicitly disbarred from providing such services itself— otherwise it would be a route by which it might again be drawn into individual cases and start developing an ombudsman-style role which would be at odds with the strategic role which we believe it should have.51
We remain convinced that a role in developing such approaches is a fundamental element in developing a culture of respect for human rights. We are puzzled that the White Paper proposes the “good community relations” function for the Commission, invoking the human rights values to underpin this,52 but appears to reject the same approach to individual dispute resolution.
40. We recommend an explicit power for the Commission to support alternative dispute resolution approaches to disputes arising across the full range of its responsibilities. Any proposal to exclude Human Rights Act cases from this remit will require rigorous justification.
50 Appendix 4. 51 Eleventh Report, Session 2003–04, op cit., para. 71 52 Cm 6185, para. 1.30.
18 Sixteenth Report of Session 2003–04
4 Governance, accountability and independence
Areas of consensus 41. We note that there is a wide degree of agreement between our recommendations and the proposals of the White Paper about how to structure the new Commission. Paragraphs 5.4 to 5.13 deal with the nature and composition of the Board. They appear to be broadly in line with our views. Chapter 8 discusses the CEHR’s proposed regional structure. These proposals seem to us largely sensible. Chapter 9 examines the Scottish and Welsh dimensions. It proposes separate offices in these nations, specific provision for one Scottish and one Welsh Commissioner to be appointed, and a statutory requirement for there to be committees for Scotland and Wales in the board structure. It also proposes separate reporting requirements to the Scottish Parliament and the National Assembly. Again, these proposals seem to us appropriate.
42. Paragraphs 10.12 to 10.21 indicate that the Commission will be obliged to establish a specific “disability committee” for a transitional period. We welcome the special recognition given to the disability element of the new commission, given the short time the DRC will have had to advance its mission of promoting equal opportunities for disabled people.
43. However, paragraphs 5.19 and 5.20 indicate that the standard NDPB model will be adopted for the Commission, and paragraph 5.21 suggests that the funding stream will be controlled by the “sponsor Department”. It does not suggest which department this will be. We do not consider these proposals appropriate.53
State institutions supporting democracy 44. The White Paper states—
Like the existing equality commissions, the CEHR will be an executive non- departmental public body.54
45. The new Commission will not be like the existing equality commissions. This proposal is not acceptable. The EOC told us that the proposals in the White Paper are “not enough in themselves to ensure the necessary independence from government”.55 The far more radical proposals we made in our report were broadly endorsed by the DRC.56 The time has come for the Government to recognise that there is a class of public bodies which have a distinctive constitutional role, and that these need to be designed with this special status in mind. It is not sufficient to pick the NDPB model off the shelf and apply it to every new public institution.
53 Eleventh Report, Session 2003-04, op cit., paras. 120–125. 54 Cm 6185, para. 5.1. 55 Appendix 4. 56 Appendix 3.
Commission for Equality and Human Rights: The Government’s White Paper 19
46. There is an emerging, but rather unacknowledged group of these special bodies. They comprise at present the Parliamentary Commissioner for Administration, the National Audit Office and the Electoral Commission. Each does have a distinctive (though slightly different) accountability structure. To these might be added the Information Commissioner, the Public Appointments Commission, the proposed Judicial Appointments Commission, the proposed Children’s Commissioner for England and, perhaps, the Civil Service Commissioners.
47. The relevant shared characteristic of these bodies is that they are established as part of the constitutional machinery, supplementary to Parliament, to act as a check on abuse of executive power. It is inappropriate, therefore, for them to be beholden to Ministers in any way. So far as they are to be held accountable for their actions, and for their use of public money, it is the proper task of Parliament to ensure this. They should not, however, be creatures of Parliament. The basic principles for the design of independent national institutions supporting democracy are that they should enjoy—
statutory guarantees of independence from both the executive and parliament;
a system of funding independent of direct ministerial control;
independent staffing arrangements;
statutory involvement of a parliamentary body in approving and overseeing its budget and strategic plan;
parliamentary involvement in key appointments;
direct reporting to parliament;
48. When we recently visited South Africa, it was, among other reasons, to examine the work of its human rights institutions. Chapter 9 of the South African Constitution establishes a number of “State Institutions Supporting Constitutional Democracy”. These are the Public Protector (broadly equivalent to the Parliamentary Commissioner for Administration), the Human Rights Commission, the minorities commission, the Commission for Gender Equality, the Auditor General and the Electoral Commission. It can be seen that this modern constitution reflects the special status of these institutions and groups them together.
49. Although the governance and accountability structure of these institutions may not be wholly directly transferable to the UK, it is worth noting in particular two fundamental features built in to the design of all the “Chapter 9 institutions”. The first is that it is intended that they will in future all be directly funded by money voted by Parliament, not through the budgets of the departments of state. The second is a degree of parliamentary involvement in the appointment of individuals to these commissions and offices.
50. In our previous report, we proposed a model accountability structure for the new Commission based on a combination of elements from the design of the offices of the
20 Sixteenth Report of Session 2003–04
Parliamentary Commissioner for Administration, the National Audit Office and the Electoral Commission.57 The essential elements were as follows:
• the Chair of the Commission should be defined in statute as an “officer of Parliament”.
• dismissal of a commissioner within the fixed term of appointment should be effected only by a joint address of both Houses, or otherwise only on the recommendation of a statutory committee which includes parliamentary, non-executive, representatives;
• there should be no power of direction or veto over the commission, in relation to the promotion and protection of human rights, either by Ministers or by Parliament;
• the commission should be funded by moneys voted by the House of Commons directly, not through the voted expenditure of a ministerial department.;
• the commissioners and staff of the commission should not be crown servants (although they should have a statutory guarantee of broadly equivalent terms and conditions);
• there should be a statutory committee appointed to approve and oversee the commission’s budget, and the strategic plan which it should be required by statute to present;
• the statutory committee should recommend commissioners for appointment, since there is no obvious way to reconcile differences of view between the two Houses;
• the commission should be required to make an annual report to Parliament, which should be laid before each House by its Clerk. The commission should be empowered to lay other reports before Parliament as it thinks fit, including those arising from general inquiries on matters of public policy relating to human rights;
• there should be a committee of both Houses charged with considering the reports of the commission.
51. We expect the next stage of the Government’s design of the new Commission to take these proposals fully into account.
52. A critical element in the independence of such institutions is the decision-making processes on funding. Nobody proposes writing such bodies an open cheque, but as the EOC comments—
One of the most common means of sidelining equality bodies … as is shown from international experience, is through inadequate initial resourcing or subsequent resource cuts . The EOC would like to see some form of safeguard to ensure that the funding levels for the CEHR are subject to appropriate scrutiny. Whichever mechanisms are put in place ought to aim to prevent any repetition of the current imbalance in the funding between the existing three commissions, and provide a clearer rationale for linking resources to roles.58
57 Eleventh Report, Session 2003–04, op cit., paras. 126–137. 58 Appendix 4.
Commission for Equality and Human Rights: The Government’s White Paper 21
We consider that the best safeguard that can be devised to ensure that manipulation of funding is not used to undermine the independence of the new Commission will be the transparency that should result from close parliamentary involvement in its budget- setting process.
22 Sixteenth Report of Session 2003–04
5 Conclusion
53. We once again express our welcome for the Government’s decision to give effect to our own recommendation of March 2003 by setting in motion the process of establishing the Commission for Equality and Human Rights. We hope that the necessary legislation can be introduced in the next parliamentary session to ensure that the new body will be up and running by the end of 2006.
54. The purpose of this report has been to highlight areas of difference between our recommendations on the functions, powers and structure of the Commission and the proposals of the Government. As should be clear, there are very wide areas of agreement, and an identity of purpose. However, we expect the Government, at the next stage of the process of implementing this decision to demonstrate clearly that it has addressed these areas of disagreement and come forward with a strong, rational justification for the decisions which it makes in proposing legislation to Parliament. We, for our part, will examine that legislation closely.
55. That legislation will not be the end of the matter. The Government must commit itself to bringing forward proposals for a single Equality Act as soon as is reasonably practicable.
Commission for Equality and Human Rights: The Government’s White Paper 23
Formal Minutes
Wednesday 21 July 2004
Members Present:
Jean Corston MP, in the Chair
Lord Bowness Mr David Chidgey MP Lord Campbell of Alloway Mr Kevin McNamara MP Lord Judd Lord Lester of Herne Hill
The Committee deliberated.
* * * * *
Draft Report [Commission for Equality and Human Rights: The Government’s White Paper], proposed by the Chairman, brought up and read.
Ordered, That the draft Report be read a second time, paragraph by paragraph.
Paragraphs 1 to 55 read and agreed to.
Resolved, That the Report be the Sixteenth Report of the Committee to each House.
Ordered, That certain papers be appended to the Report.
Ordered, That the Chairman do make the Report to the House of Commons and that Lord Bowness do make the Report to the House of Lords.
[Adjourned till Wednesday 8 September at a quarter past Four o’clock.
24 Sixteenth Report of Session 2003–04
Appendices
1. Letter from David Lammy MP, Parliamentary Under Secretary of State, Department for Constitutional Affairs
I am grateful to you and to your Committee for your most recent report on the proposals for the CEHR. It seems that we are ad idem on the major issues and on many of the second-order questions too. As evidence, I have pleasure in enclosing a copy of the White Paper we published last week.
The White Paper should not be taken as the Government’s final reply to the Committee. The Bill will serve that purpose and we shall, in any case, respond in due course.
Meanwhile, when Charlie Falconer gave evidence to the Committee on 8 December last, he mentioned a strategic review of the progress being made in Government Departments and his hope that it might be launched by a letter to Permanent Secretaries around the turn of the year.
I am afraid that we were not able to meet that timetable, though the passage of time has allowed us to take advantage of the linkages with the CEHR project. However, and as I believe your Clerk has been informed, the necessary consultations have taken place and Sir Hayden Phillips has now written, as in the attached copy. We have also prepared a fuller version of the annex which has gone to each Department’s human rights contact point, and we will send that separately to your Clerk.
19 May 2004
2. Letter from Rt Hon Patricia Hewitt MP, Secretary of State for Trade and Industry, Department of Trade and Industry
Thank you for your letter of 17 May and the copy of the Joint Committee on Human Rights (JCHR) Eleventh Report on the Commission for Equality and Human Rights: Structure, Functions and Powers. I welcome the publication of this report and the important contribution that the JCHR has made to the debate about institutional support for equality and human rights in Great Britain.
As you point out, we had little opportunity to study the JCHR’s report before publishing Fairness for All: A New Commission for Equality and Human Rights on 12 May. However, DCA and DTI officials are now considering the JCHR report in detail and will be working with other interested Departments so that DCA can submit an official Government Response in due course.
When considering the report, we will of course pay particular attention to those areas where there are differences between the recommendations put forward by the JCHR and the proposals set out in the White Paper.
4 June 2004
Commission for Equality and Human Rights: The Government’s White Paper 25
3. Memorandum from the Disability Rights Commission
1. Introduction
1.1 The Disability Rights Commission was created by the Disability Rights Commission Act 1999. Section II of the DRCA imposes the following duties on the Commission:
• To work towards the elimination of discrimination against disabled persons;
• To promote the equalisation of opportunities for disabled persons;
• To take such steps as is considered appropriate with a view to encouraging good practice in the treatment of disabled persons;
• To keep under review the workings of the Disability Discrimination Act (DDA) 1995 and this Act.
1.2 The Commission’s goal is a society in which all disabled people can participate fully as equal citizens.
1.3 We are pleased to submit evidence on the differences between the proposals of the Government’s White Paper “Fairness for All: A New Commission for Equality and Human Rights” and the Committee’s own report on the structure, functions and powers of a future CEHR. We also wish to highlight key issues from our initial analysis of the White Paper proposals.
2. Governance—the need for specific arrangements for disability
2.1 The DRC has welcomed the proposals in the White Paper for distinctive governance arrangements in respect of disability (but see annex for an outline of our outstanding concerns). We would take issue with the Committee’s own recommendations in this area which we feel do not go far enough towards meeting the goal of ending disability discrimination.
2.2 We reiterate that new equality arrangements must retain a major emphasis on disability discrimination. It is essential that: disabled people are able to exercise direct influence and control on matters which are directly concerned with disability; expertise and knowledge of disability are retained; the structures include a sizeable unit devoted exclusively to disability issues; and there are sufficient budget and dedicated resources over a sustained number of years to ensure successful preparation for and implementation of the major programme of legislative expansion and reform that lies ahead on disability rights.
2.3 The White Paper makes a number of welcome proposals towards these objectives including:
• a statutory requirement on the Secretary of State to ensure that at least one person who has, or has had, a disability is appointed to the Board of the CEHR;
• provision in the CEHR legislation for the establishment of a dedicated disability committee—at least 50 per cent of whom will be made up of people who have or have had a disability with decision-making powers on the key areas of work for disability rights (subject to review after five years).
26 Sixteenth Report of Session 2003–04
2.4 We share the Government’s view that it is possible to combine distinctive disability arrangements with a coherent, over-arching strategy for the CEHR as a whole and would urge the Committee to review its recommendations in this area.
3. Harmonization and ‘leveling-up’ of Legislation and a Positive Duty to promote Human Rights
3.1 The DRC finds itself in agreement with the Committee on the need for a future CEHR to promote human rights in the broadest and most inclusive sense, on the need for a positive duty on the public sector to promote human rights and on the need for enactment of harmonized equality legislation ‘with all deliberate speed’.
3.2 We have strongly advocated the harmonization of equality legislation and do not in principle see any objection to that process of harmonization extending to human rights insofar as such extension is practicable. Since the public sector duty on race is shortly to be accompanied by similar duties on gender and disability, a similar extension to human rights is in principle attractive. No doubt the Government will reasonably expect clarification of precisely how such a duty would extend the benefits already afforded by the Human Rights Act in its current form. In addition, the DRC agrees with the Committee that the upward harmonization of equality legislation should be a priority for Government.
4. Alternative Dispute Resolution/Conciliation Services
4.1 The Committee’s recent recommendations for “a general power to support alternative dispute resolution approaches to allegations of breaches of human rights by public authorities” goes beyond the more limited proposals in the White Paper which envisages that conciliation services should be limited to discrimination cases with a human rights dimension.
4.2 The DRC’s own experience of facilitating conciliation of disability rights disputes is generally encouraging. The extension of such a service to human rights disputes is in principle desirable, subject to the necessary safeguard of ensuring that any such service is towards the rights-based end of the ADR spectrum and not merely administrative or facilitative (i.e. conciliation needs to be conducted in the context of the legal framework and be informed by the expectations and standards thereby created).
5. Human Rights Enforcement
5.1 Neither the Committee nor the Government in its White Paper support a power to support free-standing human rights cases. The DRC has since its early days in 2000 proposed that its case-funding remit be extended beyond the DDA to include stand-alone human rights cases that depend upon matters relating to the applicant’s disability. The absence of such a power remains a concern for us.
5.2 The White Paper proposes that the CEHR has powers to conduct general inquiries on human rights and to seek leave to intervene in human rights cases. We have welcomed this. The proposed express power to fund combined human rights and discrimination cases and the linked ability to continue with the human rights element even if the discrimination element falls away would go some small way towards filling the gap.
5.3 The Committee’s additional proposal that the CEHR should be able ‘to seek judicial review of the policies or actions or omissions of a public authority where it has reason to believe that such policies or actions or omissions have resulted, or are likely to result, in a violation of the Convention rights’ would also help close the gap and is something we
Commission for Equality and Human Rights: The Government’s White Paper 27
indicated support for in our previous submission. In previous submissions to the Committee we have also argued that the CEHR should also have the power to take cases in its own name, although we note that your recent report rejects such a power.
6. Accountability and Independence
6.1 The DRC agrees with the Committee that independence and accountability are essential, especially given the human rights remit of the CEHR. The Committee has considered this in far greater depth and produced far more specific proposals than the White Paper.
6.2 We would expect the Paris Principles in regards to the establishment of a national human rights body and its relationship with government to be honoured. As stated in our previous submissions the DRC believes that the body should report directly to Parliament by way of a parliamentary committee—this could include extending the current remit of the JCHR to become a Joint Committee on Human Rights and Equality. Further, it is the DRC’s view that the CEHR should have it’s budget set by parliament and that the process for public appointments be made through conforming to the ‘Nolan Principles of Public Life’.
7. DRC provisional position paper on the CEHR
7.1 In addition to the specific points highlighted above, we would like to refer you to the DRC’s provisional position paper on the CEHR (annex) which we are currently consulting on. This paper highlights both the elements we welcome as well as issues of ongoing concern in regards to the CEHR and the White Paper itself.
28 June 2004
Annex: PROVISIONAL POSITION ON THE CEHR WHITE PAPER
GENERAL
The DRC welcomes the White Paper and its broad aspiration to promote equality and human rights in Britain. The proposals on disability are an encouraging step in the right direction, reflecting the Government’s recognition of the importance of the legislative agenda on disability; and the proposed extension of a public sector duty to gender equality is a significant move towards the harmonisation of existing equality legislation.
The proposals on disability are especially welcome in that they indicate an understanding of the distinctiveness of disability rights:
• The unique requirement under the DDA to make ‘reasonable adjustments’
• The current very heavy legislative and policy agenda on disability discrimination (including significant changes to the employment and services provisions of the DDA in October 2004, extension of the education provisions in September 2005, new regulations on vocational training in 2006, and the enactment of a new Disability Bill before the end of 2006 which will introduce a long-awaited disability equality duty for the public sector, as well as extending cover to important gaps on transport, premises and public authority functions)
• The need for a collaborative relationship with employers and service providers on the particular obstacles to integration
28 Sixteenth Report of Session 2003–04
• The complex nature of disability discrimination, which is often the result of an interplay between impairment and environment
• The diversity of disability itself, covering a wide range of different impairments and experiences of social exclusion
• The particular need for understanding of technical matters relating to specific impairments.
A number of concerns remain, which will need to be addressed if the CEHR is to be effective on disability and the other strands. These include the need for dedicated resources to underpin a disability unit, the continuing desirability of harmonised equality legislation, the importance of a firm commitment to enforcement, not just on equality but on human rights, and the danger that the very broad remit described in the White Paper will lead to a loss of focus and impact.
THINGS TO WELCOME
The following aspects outlined in the WP deserve particular welcome:
• The recognition, through a number of concrete proposals on governance, of the distinctive arrangements that will be necessary on disability to secure the future legislative and policy agenda, including:
• a guaranteed place on the CEHR board for disabled person
• a dedicated disability committee with decision-making powers on the key areas of work for disability rights (including those covered by the main provisions of the DDA), a provision that 50% of committee members must be disabled, and a secure lifetime of five years until an open review
• the appointment of ‘transition commissioners’ from the existing Commissions (including the DRC) to oversee the transition process.
• A public sector duty on gender, which represents an important step towards the harmonisation of equality legislation
• A commitment to the maintenance of the legal powers and functions of the existing Commissions, including a number of powers available only to the DRC (e.g. arranging conciliation on education and services cases; entering into binding agreements in lieu of enforcement action)
• A recognition of the need to support individual cases on a strategic basis, with case-selection criteria prioritised accordingly in favour of cases that raise points of principle and offer opportunities for impact and clarification
• The commitment to promote a human rights culture in Britain, with that promotional remit explicitly configured to include the conduct of general enquiries and third-party intervention in human rights cases
Commission for Equality and Human Rights: The Government’s White Paper 29
AREAS OF CONTINUING CONCERN
Harmonised Legislation
The DRC believes a CEHR cannot be fully effective without new legislation to level up the current provisions for the various equality strands. It is disappointing that the White Paper offers no real prospect of harmonised legislation in the near future, although the ‘concrete steps’ towards a public sector duty on gender are to be welcomed as a step in the right direction.
The role of the Disability Commissioner
No doubt an effective Disability Commissioner will take into account the interests of the CEHR as a whole and to that extent will not act as a ‘representative’ pure and simple of disabled people. However, the purpose of such a dedicated role on the Board will be defeated if that Disability Commissioner did not regard it as part of his/her function to have particular regard to salient disability issues. The disability commissioner should therefore be able to promote disability issues where appropriate and as identified by the Disability Committee.
The role of the Disability Committee
The Disability Committee should have oversight not just of the areas of work expressly mentioned in the White Paper but of disability-specific employment matters (e.g. those areas of employment work generated by the ‘reasonable adjustment’ and justification provisions of the DDA) and of the public sector duty on disability
Human Rights
The inclusion of general enquiries and third-party interventions among the promotional powers on human rights is welcome. The DRC has since its early days in 2000 proposed that its case-funding remit be extended beyond the DDA to include stand-alone human rights cases that depend upon matters relating to the applicant’s disability. This remains an important concern, and the absence of any express commitment to such a power for the CEHR is to be regretted. The proposed express power to fund combined human rights and discrimination cases and the linked ability to continue with the human rights element even if the discrimination element falls away goes some small way towards filling the gap.
Strategic Enforcement Powers
Although the CEHR will need to achieve an effective balance between promotion and enforcement, the desire for a ‘light touch’ approach should not diminish the firm commitment to strategic use of distinctive legal powers, and, especially in respect of the new strands, the application of funds to the support of key strategic legal cases.
Wales and Scotland
The provisions for the CEHR in the devolved nations, and the enhanced level of autonomy that they entail, are welcome
Particular detail still awaits clarification (notwithstanding the proposals put forward in Chapter 9), for example, precisely how the CEHR in Scotland will divide its responsibilities with those of the planned Scottish Human Rights Commission, and whether the disability- specific work of the CEHR will fall under the primary supervision of the devolved Committees or the Disability Committee.
30 Sixteenth Report of Session 2003–04
Resources and Staffing
It will be essential that the CEHR has adequate resources to meet its ambitious remit, including its wide-ranging functions on the promotion of human rights and achievement of social cohesion, whilst maintaining current levels of strand-specific expertise across six equality strands, as well as through a presence in Scotland and Wales and the nine English regions
The present lack of clarity about the commitment to match the governance arrangements on disability with an appropriately resourced and dedicated disability unit to deliver the Disability Committee’s programme of work leaves uncertainty about the capacity of the CEHR to maintain focus, especially when the general remit of the CEHR (including its social cohesion and human rights ambition) is so vast
The present lack of clarity on matters of most concern to existing staff (e.g. location, number of posts, precise degree of continuity for staff) creates the risk of ‘planning blight’ and the lowering of staff morale at the existing Commissions
Regional Arrangements and transfer of expertise
The commitment in the White Paper to capacity-building voluntary and advice sector organisations to work in partnership with the CEHR is no doubt a necessary counter- balance to the focused and strategic approach proposed for other aspects of the CEHR’s work, the achievement of workable and cost-effective arrangements in the regions will not be easy either to establish or maintain, especially in those geographical areas (for example, Wales, the Scottish Highlands, rural regions of England) where there is little existing infrastructure of service delivery.
Timescale and Transitional Arrangements
Early clarity and more detailed information on timescale and transitional arrangements for the CEHR shadow body will be essential if the work of the existing Commissions is to be maintained.
The temptation to rush through legislation, perhaps even by regulations, should be resisted in favour of a more deliberative process, certainly to include at least a paving bill and subsequent primary legislation
The commitments of the existing Commissions to live work programmes, such as campaigns, litigation and formal investigations, including the continuing financial liabilities for such work, should be factored into any transitional arrangements both to secure continuity and to inform future planning.
May 2004
Commission for Equality and Human Rights: The Government’s White Paper 31
4. Memorandum from the Equal Opportunities Commission
Introduction
The Equal Opportunities Commission (EOC) is grateful for this further opportunity to share with the Joint Committee our thinking to date on the powers and proposed structure of the Commission on Equality and Human Rights (CEHR). This memorandum is in response to the call for evidence made by the Joint Committee on the 8th June 2004. That call for evidence asked for submissions on the differences between the proposals of the Government's White Paper and the Joint Committee's own report on related matters. This memorandum concentrates on two specific issues, namely the differences between the White Paper and the Joint Committee's 11th Report on the issues of:
• Accountability
• Enforcement Powers
The comments on these two specific issues should be read in the context of the EOC's memorandum in response to the Joint Committee's previous call for evidence.
In particular, the EOC believes that a consistent set of function and powers across equality and human rights is essential if the CEHR is to fulfil its remit. It is worth reiterating why the EOC takes that view, namely that
• Consistent functions and powers should assist the CEHR in taking an holistic approach to its remit
• Consistent functions and powers will enable CEHR to concentrate to effectively tackling whatever task it has in hand without being unduly distracted by legal debates or challenges about whether it is acting on equality or on human rights grounds.
This second point is of particular relevance in discussing the proposed enforcement powers of the CEHR.
Accountability and Independence
In its 11th Report Session 2003/2004, the Joint Committee recommended that the statutory design of the CEHR should adopt and adapt the arrangements for guaranteeing the independence and accountability used for the Parliamentary Commission for Administration, the National Audit Office and the Electoral Commission. That recommendation arose from the Committee's concern that the standard model of Non- Departmental Parliamentary Body (NDPB) accountability was not a sufficient outward and visible guarantee of independence from the Government to be appropriate to a National Human Rights Commission or proposed Single Equality Body. In contrast, the Government's White Paper at paragraph 5.1 confirmed that the CEHR will be a NDPB in paragraphs 5.19 and 5.20 of the White Paper under the heading "Accountability and Independence". The Government confirmed that the CEHR:
• will operate within the standard framework setting out relationships between government departments and NDPBs
• will agree a management statement with its sponsor department
32 Sixteenth Report of Session 2003–04
• will work closely with a number of government departments who have an interest in issues on which the CEHR is working; and
• will be held to account by Parliament through the requirement for the Secretary of State to lay its annual report before both Houses of Parliament.
The EOC's view is that these arrangements are not enough in themselves to ensure the necessary independence from government. Safeguards for its independence will be of particular relevance to a body whose role relates to the compliance by public authorities with human rights standards. The EOC's position, as set out in the previous memorandum to the Joint Committee, is that we would like to see consideration of the creation of a Parliamentary Committee concerned with equality at Westminster so that (as suggested by the Joint Committee's 11th Report) a closer relationship could be built up between the CEHR and Parliament.
There are also other factors that could help support the independence of the CEHR, in the event of a hostile or unsympathetic environment in the future. It will be important that the appointed Commissioners are of a high calibre and seen to be credible and independent voices. The CEHR will also have to attract sufficient support from its partners and stakeholders in the voluntary sector, and from employers, trades unions and media, in order for them to defend its role and independence, should that come under threat.
One of the most common means of sidelining equality bodies, however, as is shown from international experience, is through inadequate initial resourcing or subsequent resource cuts.59 The EOC would like to see some form of safeguard to ensure that the funding levels for the CEHR are subject to appropriate scrutiny. Whichever mechanisms are put in place ought to aim to prevent any repetition of the current imbalance in the funding between the existing three commissions, and provide a clearer rationale for linking resources to roles.
It is also of immediate and urgent relevance to this question that sufficient resources for the first years of the CEHR are set aside in the current spending round, particularly given the complication of the existing shared funding responsibilities between three government departments.
Enforcement Powers
In its previous memorandum to the Joint Committee, the EOC set out its views on the human rights related powers which a CEHR should have. The EOC's view differs from that of the Joint Committee and the White Paper in some respects, most importantly in the EOC's view that a power to carry out "named person investigations" on a human rights issue would be an appropriate tool for the CEHR to have. The reasons for that view are set out on page 3 of the previous memorandum.
The EOC's view on the human rights related powers of a CEHR remain as set out in the previous memorandum. The comments in this memorandum are limited to those areas where there is a difference between the recommendations made by the Joint Committee in its 11th Report and the White Paper. The main points of difference are:
• the limiting of the CEHR's power to arrange for the provision of conciliation services to disputes relating to discrimination in the provision of goods, facilities, services and education (and not in cases of breach of human rights by public authorities).
59 A Single Equality Commission, Lessons from Abroad, O’Cinneide EOC 2002, pp. 47–52.
Commission for Equality and Human Rights: The Government’s White Paper 33
• The inability of the CEHR to bring judicial review proceedings in relation to human rights cases.
In addition to these specific points, there are areas where the White Paper does not specifically deal with issues raised in the Joint Committee's recommendations, for instance the suggestion that the CEHR and the Legal Services Commission should agree a memorandum of understanding which allows consultation to take place on the formulation of criteria for strategic funding of human rights cases.
The Question of Conciliation
The Joint Committee recommended that the CEHR should have a general power to support alternative dispute resolution approaches to allegations of breaches of human rights by public authorities. The Joint Committee saw this as a quid pro quo for the restriction on support for individuals bringing human rights cases. The White Paper, however, proposes that the CEHR will be empowered to arrange for the provision of conciliation services in disputes related to discrimination in the provision of goods, facilities, services and education (paragraph 4.21 of the White Paper). The reason given for this distinction is that it is consistent with the approach proposed by the White Paper for supporting HRA litigation, i.e. since human right issues can already be raised in any court or tribunal and legal aid may be available, there is no requirement for the CEHR to support cases under the HRA. It is not clear why the availability of a litigation route to resolving a dispute should preclude the provision of a conciliation service. The approach in other areas, for example in the employment sphere, is to encourage alternative dispute resolution even where there is a readily accessible route to litigation through the Employment Tribunal. The limitation of a conciliation service to discrimination cases or discrimination cases with a human rights dimension would lead to a difference in treatment of an individual's dispute based on the technical label applied to it. As mentioned in the introduction to this paper, the EOC is concerned that distinctions of this kind will hamper the effectiveness of the CEHR in achieving a holistic approach to equality and human rights and, on a more specific level, may lead to legal challenges and technical hurdles to the resolution of disputes involving the rights of individuals.
Judicial Review
The Joint Committee's Report recommended that the CEHR should have a power to seek judicial review of the policies or actions or omissions of a public authority where it has reason to believe that such policies or actions or omissions have resulted, or are likely to result, in a violation of convention rights. The White Paper does not include such a power. The White Paper rejects the notion that the CEHR should be able to take "hypothetical cases" where it would be useful to clarify points of law. The EOC's experience is that judicial review provides an extremely useful tool for addressing matters of fundamental legal principle that require clarification. The memorandum from the Centre for the Study of Human Rights at the London School of Economics responding to the Joint Committee's previous call for evidence points out that such clarification can in the long run deter potential litigants from recourse to the courts. There is also a strong argument that clarification of the law is beneficial both to individuals and to those organisations seeking to comply with the law. The EOC believes that the power to seek judicial review in this way is a fundamental tool in the promotion of human rights as a framework of core values and in monitoring the workings of the HRA.
June 2004
34 Sixteenth Report of Session 2003–04
5. Memorandum from the British Humanist Association
The British Humanist Association, which is represented on the Commission for Equality and Human Rights (CEHR) Task Force by its Executive Director, will make a detailed submission on the ‘Fairness for All’ White Paper in due course. In this brief memorandum, we only comment on certain issues raised in the Eleventh Report from the Joint Committee on Human Rights (JCHR) of Session 2003–04, and specifically those where there are significant differences between the JCHR Report and the White Paper.
1. The duty to promote understanding and awareness and help secure the protection of human rights in Great Britain (JCHR, para 14).
We agree that the CEHR should have a clear duty to help secure the protection of human rights as well as to promote human rights.
2. A mandate which allows the CEHR to promote respect for human rights “in a broad inclusive sense” (JCHR, para 18)
The White Paper focuses on the ECHR and HRA. While it seems reasonable that some priority be given to rights covered by the ECHR, we agree with the JCHR that the CEHR should also have regard to international treaties, and should participate in the preparation of reports on the UK’s compliance with international human rights instruments.
3. Positive duty on public authorities to promote human rights (JCHR paras 28–32)
There is considerable evidence of the impact of the positive duty in relation to race equality, and of similar positive duties in Northern Ireland, Scotland, Wales and Greater London. The positive duty will be extended to disability, and the Government has recently announced its intention to create a similar positive duty in relation to gender. In these circumstances, and in the light of the Audit Commission’s findings on the lack of progress made by public authorities on human rights, we consider it essential to impose a positive duty on public authorities to promote human rights. We do not believe that the legal framework set out in Chapter 4 of the White Paper is sufficient to address the poor performance of public authorities in relation to human rights.
We would also like to take the positive duty further, and recommend a positive duty on public authorities to promote equality across all six strands of equality legislation and human rights. With the new Employment Equality Regulations covering employment and vocational training, but not education, goods and services, such a positive duty will be particularly important.
4. Supporting the voluntary sector (JCHR paras 34–35)
While the JCHR Eleventh Report recommends that the CEHR work in partnership with the voluntary sector to enable voluntary groups to use human rights principles in negotiations with public authorities and in policy and campaigning work, the White Paper only considers work with the voluntary sector in relation to the promotion of good relations. While this is important, we believe that the voluntary sector could contribute a great deal to the development of a human rights culture through its interactions with public authorities, but would need the support of the CEHR to achieve this. The British Humanist Association’s own experience of using human rights arguments in submissions to public authorities, at both local and national level, often with little success, would seem to bear this out.
Commission for Equality and Human Rights: The Government’s White Paper 35
5. A single equality act (JCHR para 46)
The British Humanist Association agrees that a single equality act that rationalises the existing equality legislation, including the ‘levelling up’ of the law relating to discrimination on all the grounds now identified, should be introduced and enacted with all speed. If, as seems likely, the CEHR is established before the enactment of a single equality act, we would suggest that the CEHR be given a specific remit to assist the Government in drawing up the legislation.
6. Supporting individual cases (JCHR para 70)
While accepting that the CEHR should not support individual free-standing cases under the HRA, we support the JCHR recommendation that a memorandum of understanding between the CEHR and Legal Services Commission be developed to cover the criteria for strategic funding of human rights cases and their application.
7. Mixed equality and human rights cases (JCHR paras 72–76)
We consider it essential that combined cases continue to be supported if the discrimination element has fallen away: abandoning such a case would be unacceptable, not least because it would send out the message that human rights are unimportant.
8. Judicial review (JCHR paras 81–93)
We believe that the CEHR should have the power to seek judicial review where it has reason to believe that policies, actions or omissions have resulted or are likely to result in violations of Convention rights. A Commission with the express purpose of promoting and protecting human rights must be able to act to prevent abuses of human rights.
9. Independence and accountability, and the relationship with parliament (JCHR paras 108–143)
The BHA believes that a Human Rights Commission must be, and be seen to be, independent of government. We do not believe that the traditional non-departmental public body model would provide sufficient guarantees of independence for a Commission that covers human rights as well as equality. We therefore support a model similar to that of the Parliamentary Commissioner for Administration, the National Audit Office and the Electoral Commission. The CEHR should be directly accountable to Parliament. Parliament, rather than a ministerial department, should set the CEHR’s budget, and the Chair should be appointed as an ‘Officer of Parliament’. There should be a statutory committee to approve and oversee the CEHR’s budget and strategic plan, and the CEHR should make an annual report to both houses, with a committee of both houses established to scrutinise these reports.
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6. Memorandum from JUSTICE
Summary
1. JUSTICE is an independent all-party human rights and law reform organisation. It is the British section of the International Commission of Jurists.
2. JUSTICE welcomes the government’s proposal to establish a Commission for Equality and Human Rights (‘CEHR’) to promote all the strands of equality and to promote and protect human rights.60 Regarding the latter, we agree that the CEHR’s primary function should be to promote respect for human rights and focus on ‘achieving strategic change through promotion, advice, the spreading of best practice and the raising of public awareness’.61
3. Following the release in May 2004 of both the government’s White Paper and the Committee’s own report on proposals for the CEHR,62 we offer our observations on certain select points of apparent difference between the two documents.
International obligations (JCHR Report, para 21)
4. The concept of human rights is a universal one, recognized in numerous instruments at the international and regional level, as well as in virtually all national constitutions. It should be unsurprising, therefore, that the development of human rights values frequently relies on international standards (e.g. the Paris Principles) and comparative analysis (c.f. the influence of the Canadian Charter and the New Zealand Bill of Rights Act on the UK’s own Human Rights Act, or the comparative study of Human Rights Commissions in the government’s own consultation paper Equality and Diversity: Making it happen).63 Accordingly, we see no reason why the CEHR should be limited to only those human rights standards contained in the European Convention on Human Rights.
5. We therefore agree with the Committee’s analysis that the CEHR should be allowed to promote human rights ‘in a broad inclusive sense’.64 This would include drawing attention to the UK’s obligations under the EU Charter of Fundamental Rights, for instance. Consistent with this broad approach, we also agree that the CEHR should be involved in the reporting process under various international human rights instruments to which the UK is a party (ideally by way of auditing and providing commentary on the UK’s official report).65
Equality powers (JCHR Report, para 46)
6. JUSTICE notes that current equality law is piecemeal, inconsistent and variable. The current framework of discrimination laws are notoriously complex, having suffered over many years from a steady accretion of ad hoc measures, statutory instruments and EU directives.66 The framework is also inconsistent, with key terms being defined differently in different pieces of legislation. Worse still, the different Acts provide unequal protection against different kinds of discrimination. For instance, it is legal for suppliers of goods and services to discriminate on grounds of religion or belief or sexual orientation, whereas it is
60 See Fairness for All: A New Commission for Equality and Human Rights (DTI, Cmnd 6185) 12 May 2004. 61 Commission for Equality and Human Rights: Structure, Functions and Powers, 11th Report of the Joint Committee on Human Rights, 2003–04 (JCHR, HL 78, HC 536), 5 May 2004, p. 7. 62 Ibid. 63 DTI, October 2002, pp. 14–18. 64 JCHR 11th Report, para 18. 65 Ibid., para. 19. 66 See Gay Moon, ‘Equality re-imagined’, (2004) JUSTICE Journal 108.
Commission for Equality and Human Rights: The Government’s White Paper 37
unlawful to do so on the grounds of race or ethnicity. Consequently, for example, a Muslim family who are refused accommodation because they are Muslim will have no redress but a Jewish or Sikh family (whom the law recognizes as members of ethnic groups as well as religious groups) would. It would be problematic for the CEHR to promote an equality framework that is itself unequal.
7. Accordingly, JUSTICE supports the Committee’s call for the ‘levelling-up’ of the laws relating to discrimination on all six equality strands, in particular extending protection against discrimination in respect of education, goods, facilities and services.67 We similarly support the Committee’s call for positive duties on public bodies to promote equality of opportunity and treatment in respect of each strand.68 In view of the above, JUSTICE considers there to be a compelling case for a coherent and integrated legislative framework on equality, ideally by way of a single Equality Act.
Public Inquiries (JCHR Report, para 60)
8. In certain cases, the promotion and protection of human rights may require an effective public inquiry.69 More broadly, the ability of a statutory human rights body to conduct inquiries into matters of public importance would aid in the effective promotion of a human rights culture. Accordingly, JUSTICE supports the Committee’s conclusion that the CEHR should have full powers to conduct such inquiries on human rights issues ‘relating to the policies and practices of public authorities’.70
Litigation and related powers (JCHR Report, para 76)
9. JUSTICE has already given its view that the proper role of funding human rights cases should be for the Legal Services Commission and not the CEHR.71 Our reason for this view is that human rights issues permeate UK law and, as such, burdening the CEHR with the task of funding such cases would threaten to overwhelm it. We support the Committee’s view that there should be a memorandum of understanding established between the Legal Services Commission and the CEHR to develop appropriate criteria for the strategic funding of human rights cases.72
10. At the same time, JUSTICE notes that many cases are likely to raise both equality and human rights issues and we consider that the CEHR should not be prevented from funding a case simply because it is not a ‘pure’ equality case. Bearing in mind our caution about the CEHR becoming too heavily involved in funding matters that are properly the province of the Legal Services Commission, though, the funding of ‘mixed’ cases should be approached with care. In cases where the CEHR has supported a ‘mixed’ case but equality argument has fallen away, we agree that the CEHR should have a discretion to continue to support the case. However, we would argue that the discretion should only be exercised in a narrow category of cases—cases in which the CEHR has identified a human rights issue of strategic importance and whose facts retain the ‘flavour’ of some form of discrimination (e.g. unfavourable treatment of an identifiable class of persons) even if not technically an equality case within the terms of the existing discrimination legislation. We also agree with the Committee’s suggestion that there should be specific reporting provision in respect of the funding of such cases in the CEHR’s Annual Report.
67 JCHR 11th Report, para. 46. 68 Ibid. 69 See e.g. Edwards v United Kingdom (2002) 35 EHRR 19. 70 JCHR, 11th Report, para. 60. 71 JUSTICE response to the JCHR inquiry ‘A Human Rights Commission: Structure, Functions and Powers’ (May 2003), paras. 11–12. 72 JCHR, 11th Report, para. 70.
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11. Although we do not think that the CEHR should play a role in funding ‘pure’ human rights cases save as outlined above, we do think that the CEHR may have a role to play in helping to fund third party interventions in human rights cases by nongovernmental organizations. We note, for instance, that the fee for an application to intervene in proceedings in the Court of Appeal is presently £10073 and the fee for a petition to intervene in a matter before the House of Lords is £570.74 While the CEHR could not be expected to fund such interventions itself, it would be consistent with its role in promoting human rights to approve small grants in respect of court fees where the CEHR is satisfied that such an intervention would be in the public interest.
Taking cases in its own name and judicial review (JCHR Report, para 89)
12. We note the Committee’s call for the CEHR to have a free-standing power to bring applications for judicial review in respect of ‘pure’ human rights cases. We reiterate our view75 that the human rights litigation functions of the CEHR should be developed gradually by way of amicus briefs and third party interventions (for the avoidance of doubt, the CEHR should have explicit power to intervene as appropriate in human rights cases). Should these powers prove inadequate, the power to initiate proceedings for judicial review could be added at a later stage.
13. JUSTICE is concerned that the CEHR will already be under very significant pressure to manage its human rights caseload given the likely number of individual complaints it is likely to receive raising both equality and human rights issues, as well as conducting its own third party interventions on human rights matters. Accordingly, the suggestion that the CEHR should discharge its statutory duty to protect and promote human rights by way of “seeking judicial review of actions, failures to act or policies or rules which it believed to be in continuing breach, or to threaten a breach, of the Convention rights”76 may give rise to an unfortunate impression that the CEHR has primary responsibility to litigate to prevent such breaches. If the CEHR is given the power to initiate proceedings for judicial review to prevent a breach of Convention rights, JUSTICE suggests this should be limited to only those cases in which there is a compelling public interest in doing so.
Independence and accountability (JCHR Report, paras 128–141)
14. JUSTICE agrees with all the Commission’s proposals to ensure the independence, accountability and transparency of the CEHR in accordance with the Paris principles.
29 June 2004
73 www.courtservice.gov.uk/cms/media/200_fees.pdf 74 Practice Directions and Standing Orders applicable to Civil Appeals (HL, November 2003), Appendix L. 75 See FN 70 above, para. 12. 76 JCHR, 11th Report, para. 89.
Commission for Equality and Human Rights: The Government’s White Paper 39
7. Memorandum from the Law Society
The Law Society is pleased to have the opportunity to respond to the Joint Committee’s consultation on the proposals set out in the White Paper ‘Fairness for All’, and in particular those relating to the Government’s proposed arrangements for accountability, the litigation powers of the new body, and the proposed new powers to conduct ‘general inquiries’.
1. General Comments
The Law Society welcomed the Joint Committee’s 11th report which corresponded with a number of the Society’s concerns and recommendations. The Society is broadly pleased with the provisions of the White Paper. However we still have particular concerns about the status of human rights within the new Commission and the Commission’s independence from Government.
Before turning to the specific issues raised by the Joint Committee, we would like to mention two other areas where we noticed a disparity between the JCHR report and the White Paper:
• The Joint Committee in its recent report argued in favour of a positive duty on public authorities to promote human rights. We consider that this would be a logical step which would give the human rights function of the CEHR much greater power and influence in relation to human rights than is currently envisaged in the White Paper. The DCA has tacitly accepted the need for public authorities to address human rights issues proactively in the letter recently sent by Sir Hayden Phillips to Sir Andrew Turnbull and others encouraging Government departments to review and reinvigorate their commitment to a human rights culture.
• The Law Society has long advocated for a Single Equality Act (SEA). We note that we are not alone, as not only was the Joint Committee’s report in favour of an SEA, so were many of the respondents to the call for evidence. Furthermore MPs have recently established an EDM calling for a SEA to make the discrimination laws consistent. They feel that the existing ”patchwork of law will undermine the new Commission's ability to enforce and promote equality”.77 We believe that if Parliamentary time is not found to deal with this issue as a matter of urgency, then the CEHR will be reinforcing the inequalities between groups which it seeks to remove. The importance of this has recently been emphasised in the case of Ghaidan v. Godin-Mendoza.78
2. Arrangements for accountability
2.1 Proposed model
The White Paper proposes that the Non-Departmental Parliamentary Body (NDPB) model is used for the CEHR, whereas the Joint Committee favours a model which provides the CEHR with greater independence from Government. Although the Law Society has not previously specified a preferred model, it has advocated that the new body must be based, as a minimum, on the UN’s Paris Principles. We would therefore prefer that the CEHR’s status be similar to that of the Parliamentary Commissioner, National Audit Office Civil Service Commissioners or Electoral Commission models. If the Government proceeds with
77 EDM 1353 Equality Law. 78 21 June 2004 [2004] UKHL 30. See in particular paragraph 132 of the speech of Baroness Hale.
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the NDPB model, we would suggest that the DCA would be the most appropriate sponsoring department.
2.2 Funding
The White Paper does not deal in any detail with the funding of the Commission, although we understand that this is still ‘under discussion’79 and that the Government is committed to ensuring that the CEHR is properly and adequately resourced.80 We note that the NDPB model proposed in the White Paper, has a sponsoring department and a Secretary of State to which the body is answerable in terms of use of funds.
The Joint Committee is in favour of funding being voted on by the Commons directly i.e. not through the expenditure of a sponsoring department, with the budget approved and overseen by an independent statutory committee. We note that the Paris Principles state that any human rights body must have adequate funding, “The purpose of this funding should be to enable it to have its own staff and premises, in order to be independent of the government and not be subject to financial control which might affect this independence”.81 We therefore agree with the Joint Committee that funds must come from a central budget and that a non-ministerial committee should oversee funding arrangements.
2.3 Reporting mechanism
As mentioned above we do not support the NDPB model with a ‘sponsoring department’. The JCHR has suggested that its own remit should be extended to allow it to consider, amongst other things, the expenditure, administration and policy of the CEHR. The Law Society agrees that the CEHR should report directly to Parliament.
2.4 Chair, Board and Committee appointments
The Law Society agrees with the White Paper that the Chair and Board should be appointed in line with the requirements of the Office of the Commissioner for Public Appointments.
We are pleased that the White Paper has recognised that special arrangements are needed for the disability strand, and note that the JCHR recognises that there are persuasive arguments in favour of particular arrangements for disability. We also support the Joint Committee’s emphasis on the need for appointees to the Commission to have sufficient experience, knowledge and expertise. However, there is no definition of ‘disabled’ for the purposes of appointment to the Commission, we therefore believe that it should be the same as that in the Disability Discrimination Act 1995. In addition, it must be clear that ‘disabled’ appointees must also meet the experience, knowledge and expertise criteria.
3. Detail of the litigation powers of the new body
3.1 General comment
Although we note that the Joint Committee in its report did not support a power for the CEHR to support individual cases, we are generally disappointed by the lack of litigation powers for the Commission in relation to human rights. Moreover, we are concerned that
79 Parliamentary answer by Patricia Hewitt on 26 May 2004. 80 Parliamentary answer by Patricia Hewitt on 7 June 2004. 81 Principles relating to the status and functioning of national institutions for protection and promotion of human rights paragraph B2.
Commission for Equality and Human Rights: The Government’s White Paper 41
the criteria on which the CEHR can support cases will limit access to justice, as the CEHR will only be able to support and fund strategic cases. We are also concerned that the CEHR will not be able to support cases which would be for the benefit of a member of a protected group, but that does not involve discrimination legislation.
3.2 Judicial review
We understand that the Government is still considering whether the CEHR should be empowered to seek judicial review of breaches of section 6 of the Human Rights Act 1998 by public authorities.82 We note that the Joint Committee has suggested that the new Commission should have power to seek to judicially review policies, actions or omissions of a public authority where it believes this has resulted in or is likely to result in a breach of ECHR rights. The Law Society strongly endorses this position. Moreover, the CEHR should have power to seek, in judicial review proceedings, interpretative declarations under section 3 of the HRA or declarations of incompatibility under section 4.
3.3 ‘Mixed’ cases
We note that the Government is still consulting on whether there should be continued support for combined Human Rights Act/discrimination cases, where the discrimination element falls away. We also note that the JCHR has said it would be perverse for the Commission to be forced to withdraw support from such a case should the discrimination element fall away. We are in complete agreement with the JCHR on this point and cannot see how any other position is justifiable. It is nonsensical that the CEHR should be able to support a case which discloses a discriminatory breach of the Human Rights Act but must withdraw support if it appears that the practice of breach is indiscriminate, and therefore more widespread.
Example – A recent inmate disability discrimination case involved continuous discriminatory treatment over a period of time, during which the prisoner was transferred to another prison (a common occurrence). There were, therefore, two prisons involved in the same claim. The First Defendant (FD) was the Home Office and the Second Defendant (SD) was a private contractor.
The claim against the SD settled on the human rights aspect i.e. paraplegic wheelchair user prisoner unable to move from chest down, handcuffed attending mother’s funeral. The discrimination/human rights case against FD is on going.
Had the case been funded by CEHR and the FD settled before the SD, then the very important human rights point could not be continued unless support continues in such cases. Under public funding, the claim would also have been vulnerable, as it was low value.
3.4 ADR
We are disappointed that the White Paper has specifically excluded a power for the CEHR to provide conciliation and/or ADR services for human rights cases, particularly in light of the Government’s pledge to use ADR in cases to which it is a party.83 In 2002, the Secretary to the Treasury, Andrew Smith, emphasised the value of ADR saying, "This approach [ADR] is very constructive because it is a lot cheaper, quicker and usually non-adversarial. This way both parties share in the savings generated by sensible dialogue."
82 Lord Filkin’s parliamentary answer to question asked by Lord Lester on 15 June 2004. 83 Initial pledge made by Lord Irvine on 23 March 2001, and further commitment made on 8 April 2002.
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We note that the JCHR advocated that the CEHR should be given a general power to support ADR approaches to allegations of breaches of human rights by public authorities. We are mindful of the fact that privately-funded ADR is expensive, and there is a need for accessible and affordable ADR. The Law Society therefore supports the JCHR’s approach.
4. Details of the proposed new powers to conduct ‘general inquiries’
The Law Society welcomes the White Paper’s commitment to allow the CEHR to conduct general inquiries in relation to human rights issues. However we do not believe that this goes far enough.
The Law Society is concerned that the CEHR will not be able to target particular bodies in its general human rights investigations. It appears that the CEHR will be unable to carry out an inquiry into the practices of a particular body where it wishes to foster the promotion of a human rights culture within an area covered by that body. It therefore appears that the Commission may be compelled to investigate a far wider group/sector than is necessary. For example, it is difficult to see how the CEHR could investigate a particular contractor providing services to the IND. Would the CEHR have to investigate the whole of the Home Office to achieve its aims? Such an approach would be out of keeping with past practice—see for example the CRE’s general investigation, into the Home Office operation of immigration control, with a view to promoting good race relations.84
We also note that it has been proposed in the White Paper that the CEHR will be able to initiate inquiries either independently or at the request of the Secretary of State; that it will have to publish terms of reference before launching an inquiry and will be able as a last resort to apply to the Secretary of State for permission to compel third parties to provide information relevant to an inquiry. We note that the Joint Committee’s view was that the Secretary of State could ask, but not require, the Commission to conduct a particular inquiry. We are of the view that it is unacceptable for the Secretary of State to have either power, firstly as it would make it difficult for the CEHR to refuse a request from its sponsor department; secondly, as it may be used as a means of circumventing a public inquiry as could perhaps be seen with the CRE’s investigation of the murder of Zahid Mubarek.85
The Committee thought it would be inappropriate to require the Secretary of State’s sanction in order to compel a third party to provide evidence. However, it is the Law Society’s view, based on the minimum criteria set out in the Paris Principles, that, to be a credible body, the CEHR must retain its independence from Government. It should therefore be given sufficient powers to carry out its functions effectively, without resort to the Secretary of State. If a safeguard is needed, the appropriate model would be a right for the third party to ask the Administrative Court to set aside a notice to require evidence.
June 2004
84 Immigration Control Procedures: A general investigation (1985). 85 A formal investigation by the Commission for Racial Equality into HM Prison Service of England and Wales. PART 1: The Murder of Zahid Mubarek (2003).
Commission for Equality and Human Rights: The Government’s White Paper 43
8. Memorandum from Mr Samuel Budu
I had the opportunity to make a submission to the Committee in the earlier session of its work on the idea of a Human Rights Commission. I have also had the opportunity to read the Committee’s eleventh report of session 2003–2004 and the White Paper issued in May 2004 (Fairness for All: A new Commission for Equality and Human Rights).
The views expressed herein on the Structure, Functions and Powers of the proposed CEHR are based on my experience as a Race Equality Director for the past eight years and my contact with a similar institution in Ghana (The Commission for Human Rights and Administrative Justice).
1. Structure
1.1 Historically, and whether in democratic or non-democratic societies, human rights violations and acts of discrimination were and are still most likely to be perpetrated by the State. The State, through its institutions such as the military, police and other public sector organisations were and are the instruments of human rights abuse. For example, in Britain, NHS Trust hospitals and local authorities are some of the public sector organisations that would resist requests for investigation into wrong doing on the part of the organisation for fear of a claim. Such refusals are sometimes confirmed by government departments, senior civil servants or even ministers. In some cases, the refusal is tantamount to denial of one’s fundamental human rights.
For a culture of equality and human rights to be developed and sustained, such barriers as described above should not be faced by the CEHR. The proposed governance and structure of the CEHR as contained in the White Paper would not allow the Commission to work effectively in delivering equality and human rights. This is because the CEHR would have to report to a Secretary of State and not directly to Parliament.
The CEHR coming under a government department as a Non-Department Public Body would mean that its budget would be set by a Secretary of State. This could lead to a situation where the Commission could be at the mercy of a Secretary of State for allocation of resources.
Again, where there are differences of opinion on a particular matter between the Commission and the government of the day, the Commission could be weakened in taking an independent position which may be critical of the government. Such critical positions could be seen as “a risk” since direct criticism of government policy could be seen as a challenge and may result in reduced funding in subsequent years.
For example, there are common perceptions, wrongly, among some black and minority ethnic people that the CRE is not critical enough because of the fear factor that if the CRE criticises the government (especially the Home Secretary or Home Office), the Chairman would not be reappointed at the end of his term of office, or the Home Office would reduce their funding. This situation erodes confidence in the CRE among some sectors of society, especially the black and minority ethnic groups.
Equality and Human Rights is too important for the body championing them to be a NDPB under a Secretary of State.
I strongly support the view of the Joint Committee on Human Rights that the new body should report direct to Parliament. Reporting to a Secretary of State would be a missed opportunity. Which Secretary of State would the new body report to? Is it the Secretary of State for Home Affairs, DTI, Constitutional Affairs or Works and Pensions? This could even
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create a power struggle among them to have control of the new body. A recipe for disaster.
1.2 I support the recommendations that the Commissioners should be appointed in line with the requirement of the Office of the Commissioner for Public Appointments. The Chairperson should be approved by either the Prime Minister or Parliament.
I also support the recommendation that there should be a strong presence of the Commission in all the English regions. However, it is not clear what structure, if any, would exist below regional level.
I am of the view that there should also be a strong presence at county level. In fact, it would be better to have strong county level representation, similar to the arrangement for the Learning and Skills Council, rather than regional. The advantage in county representation is that it would undertake work (casework, information, advice, public education) at local level.
I am mindful of the fact that county level representation could be too expensive. However, we should bear in mind that the economic and social cost of discrimination is often too high. The cost of human rights abuse or denial is not yet quantified.
I also support the recommendation that the Commission’s internal structure should be functional. That is, departments within the organisation should be generic rather than strand by strand. If the new body decides to have departments or sections such as casework, it should be casework section for all strands of equality and human rights rather than casework sections for race, sex, disability, age, sexual orientation, religion, etc. Sections or departments based on individual equality strands could result in intra-sectional competition or struggle for resources.
The body should also not appoint commissioners to be responsible for different strands. Such structured roles could also lead to power struggle. For example, an influential and powerful commissioner with responsibilities for a particular stand could use his/her influence and power to gain more resources for his or her strand, which could result in internal competition among both commissioners and staff. Instead, commissioners should be given generic responsibilities such as a commissioner responsible for public education for all areas of the Commission’s work.
2. Functions
I strongly support the recommendation that the CEHR should not directly be involved in supporting individuals to pursue discrimination and/or human rights claims. The CEHR should be seen to be impartial by all parties. Supporting individuals in pursuing claims would not be considered as impartial.
Instead, the CEHR should play a more strategic function in developing and sustaining a culture of equality and human rights.
In addition to the strategic role (at policy level) the body should have enforcement powers to investigate public and other bodies who fail in their duty to ensure the delivery of equality and human rights (either in employment or service delivery).
Support to individuals in pursuing discrimination and human rights abuses should be provided at local (county) level. This should involve providing information and advice to individuals, receiving, investigating and pursuing claims on behalf of individuals. These already exist at local (county) level through voluntary and private organisations such as
Commission for Equality and Human Rights: The Government’s White Paper 45
Race Equality Councils, CABx, Disability, Religion, Women and Gay, Lesbian and Transexual groups who are already providing such services. These groups could be encouraged and funded to continue to provide such services at local level.
From my experience with the CRE, the direct involvement in individual’s cases often causes delay (through no fault of the CRE). For example, an application from an individual to the CRE for support in pursuing a race discrimination claim can sometimes take three months or more before the individual would be advised as to whether his/her claim would be supported. This is because the decision to support such applications are made at higher level (probably by commissioners) and are also constrained by financial, human and material resources at the disposal of the CRE. Again, often it is the high profile cases that are supported. The low profile cases that are equally disturbing and cause a lot of difficulties (including stress, depression and mental breakdown) to the victims if not supported.
Initial investigations into allegations of discrimination and human rights abuses could be done at local level by trained caseworkers. Where there is sufficient evidence to suggest that discrimination or human rights abuse has occurred, then qualified professionals (solicitors) should be engaged under the legal aid system to pursue the claim.
The new body would run the risk of being bogged down with dealing with numerous cases and the risk of being detracted from more important strategic and enforcement roles.
Adequate and appropriate support to individuals could be best provided at local level rather than at regional or national level. If provided at regional level, there is the issue of accessibility to be considered. A regional base would be less accessible than a county base.
Some functions, such as public education could be at national, regional and county levels. However, the national body should have overall responsibilities for developing, promoting and sustaining a culture of equality of opportunities and human rights.
3. Powers
Once the CEHR is made fully independent by reporting directly to Parliament rather than through a Secretary of State, the question of its powers is automatically resolved. It would have its powers from Parliament in addition to all those recommended in the White Paper and the Joint Committee on Human Rights’ report.
Nevertheless, any such powers should be used strategically to encourage organisations to practice good equal opportunities and respect for the human rights of all individuals. Powers should not be used to create an atmosphere of fear and uncertainty.
28 June 2004
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9. Memorandum from Francesca Klug, Professorial Research Fellow,86 and Claire O’Brien, Research Fellow, Centre for the Study of Human Rights, London School of Economics
1. Introduction
As requested this evidence concentrates on differences between Fairness for All’s87 outline proposals for CEHR and the conclusions reached by the Committee in its recent reports,88 with particular focus on promotional and litigation powers, and general inquiries. We note that the JCHR has found a “large degree of agreement between its proposals and those of the government”89 and therefore address only briefly other outstanding issues.
2. Promotion
2.1 CEHR’s general duty to promote human rights
Promotion is the primary competence required of national human rights commissions by the Paris Principles.90 We strongly welcome the extensive promotion powers proposed by the White Paper which include, in addition to public education and promoting 'good practice', responsibilities to assist public authorities to comply with their legal obligations, and to work with inspectorates to develop performance measures and operational standards on equalities and human rights.91
The White Paper is unclear on the precise legal form of CEHR’s promotional remit over human rights. In our view this must at minimum take the form of an express statutory duty, rather than a power, to promote human rights, as recommended by the Human Rights Task Force.92
2.2 CEHR’s power to promote human rights and the private sector
The White Paper’s expression is ambiguous on this issue. Initially it states that “the CEHR will spread good practice and promote support for human rights throughout the public sector, including to private sector bodies carrying out public functions and services”93. Later, on the other hand, in describing the “public sector” to which CEHR’s support will extend, it states that “private enterprises, contracted to carry out or deliver services to the public are also subject to some of the legislative framework which applies to the public sector, including the HRA”.94 This could be interpreted as suggesting that private sector bodies’ responsibility for complying with HRA turns on the existence of a contractual relationship with a “pure” public authority and, further, that CEHR’s promotional remit will be correspondingly limited.
86 Francesca Klug is also a member of the Government’s CEHR Task Force. 87 Fairness for All: A New Commission for Equality and Human Rights (Department for Trade & Industry, in association with the Department for Constitutional Affairs, Department for Education and Skills, Department for Work and Pensions, and the Home Office), Cm 6185 (12 May 2004). 88 Commission for Equality and Human Rights: Structure, Functions and Powers, Eleventh Report of Session 2003–04 (HL Paper 78, HC 536);The Case for a Human Rights Commission, Sixth Report of Session 2002–03, Vol. I (HC Paper 67–1). 89 JCHR, Call for Evidence, Commission for Equality and Human Rights: Structure, Functions and Powers, 8 June 2004. 90 UN Doc. A/RES/48/134 (20 December 1993). 91 Fairness for All: A New Commission for Equality and Human Rights, op cit., paras. 3.9–3.17, 7.41–7.55. 92 See summary of Task Force discussions at www.womenandequalityunit.gov.uk . 93 Fairness for All: A New Commission for Equality and Human Rights, op cit., para. 3.9, emphasis added. 94 Ibid, para. 7.38, emphasis added.
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In drafting the proposed legislation care must therefore be taken to ensure that CEHR’s promotional power in this respect “marches in step” with HRA’s definition of “public authority”, according to its proper and purposive interpretation as identified by the JCHR.95
2.3 Positive duty to promote human rights
The White Paper heralds the extension of the duty to promote equality from race96 to disability and gender,97 and the JCHR favours extending this further to human rights. We believe that this issue should be considered by CEHR in the context of its responsibility to keep the working of discrimination legislation and the HRA under review.98
2.4 Definition of human rights
The White Paper leaves uncertainty in stating that, “where CEHR uses statutory powers in relation to human rights functions…it will do this in relation to the HRA”99, whereas as regards promotion, it will be able to rely also on “international agreements on human rights to which the UK is a signatory”.100 We emphasise again101 the need for a definition of human rights that encompasses all the UK’s legal obligations under international human rights law, with the exception that, in giving compliance advice and assistance, CEHR will need to focus on the HRA, as only this is enforceable in domestic law. Consistent with this approach, CEHR should be empowered to engage in the reporting processes which exist to monitor compliance with international human rights treaties to which the UK is party.102
3. Litigation Powers
3.1 Support for individual human rights cases
The White Paper excludes the power for CEHR to assist individuals with “free-standing” Human Rights Act cases, in other words, cases where statutory discrimination points are not also being raised.103 The JCHR contrasts the regime for supporting enforcement of rights under the HRA with that established by anti-discrimination legislation104. In the former case there is "funding potentially available from the Legal Services Commission.” In the latter, with most litigation occurring in employment tribunals for which legal aid is not
95 The JCHR has recommended that section 6 HRA 1998’s definition of public authority should be understood and applied as encompassing any body which “exercises a function that has its origin in governmental responsibilities, in such a way as to compel individuals to rely on that body for realisation of their Convention rights”, The Meaning of a Public Authority Under the Human Rights Act, Seventh Report of Session 2003–04 (HL Paper 39, HC 382), Conclusion, para. 31. 96 Under RRAA 2000. 97 Fairness for All: A New Commission for Equality and Human Rights, op cit., paras. 7.56–7.58. 98 ibid., para. 3.34. It is widely anticipated that such a review will also involve recommendations to address current disparities in protection between the different equality and human rights strands within CEHR’s remit through a new Single Equality Act. 99 Ibid., para. 3.14. 100 Ibid., para. 3.13. 101 See our Memorandum submitted to the JCHR’s last inquiry on CEHR and published in its report, footnote 105 below, Ev 45. 102 These include a number of treaties targeting discrimination breaching human rights, notably the UN Convention on the Rights of the Child, the Convention on the Elimination of all Forms of Racial Discrimination, and the Convention on the Elimination of All Forms of Discrimination Against Women. A UN Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities is being drafted:http://www.un.org/esa/socdev/enable/rights/ahcwgreportax1.htm. 103 Fairness for All: A New Commission for Equality and Human Rights, op cit., para. 3.16. 104 Commission for Equality and Human Rights: Structure, Functions and Powers, Eleventh Report of Session 2003–04, op cit., paras. 64–66.
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available, the statutory equality commissions provide important support for access to justice.
In light, firstly, of the inevitable limits on CEHR’s resources in the context of competing priorities and secondly, the need to focus on promotion and culture-change, the JCHR has also cautioned against including this power. The NIHRC’s experience of facing an overwhelming demand for case work in its early life is seen as salutary.105
Wider opinion has varied on this question.106 For the present time, we support the JCHR’s view that CEHR should focus on providing an accessible referral service, building crucial local capacity in the voluntary and private sectors capable of giving high-quality legal advice, and working with the Legal Services Commission to ensure that adequate funding for human rights cases is guaranteed from the outset of CEHR’s activity. This should include developing Memoranda of Understanding on the strategic funding criteria for human rights cases 107. In addition, the White Paper states that CEHR will provide "high quality, user-friendly information and advice" to individuals regarding their rights “under discrimination and human rights law.”108 As no statutory body is currently obliged to provide advice on human rights, it is important to note this, too, as a significant development.
We also strongly welcome the White Paper’s clear proposal for an express statutory power to intervene in equality or human rights cases.109 This would allow CEHR to advance the rights protected by HRA by strategic action, without incurring the high financial and other costs of direct litigation. The JCHR observes that the existing Commissions "regard third party interventions as an effective strategic tool in advancing their general aims”.110 While the White Paper suggests that interventions should be “of a strategic nature” and “closely tied to the CEHR's core aims", we would observe that these are qualifications which, if established by statute, might arguably intrude into courts' discretion to regulate process.
Finally, we note that in the longer term CEHR would be able to use the review powers proposed by the White Paper111 to identify any absence of protection for vulnerable groups that the above approach to support for individuals might entail.
3.2 “Combined” human rights and discrimination cases
CEHR, the White Paper states, will “continue the practice of the existing Commissions where discrimination cases involve human rights issues”, in that it “will be able to draw on human rights arguments” in discrimination cases it supports. This will reflect “the
105 The JCHR found NIHRC’s casework function to have been “particularly resource-intensive and demanding”, JCHR, Work of the Northern Ireland Human Rights Commission, Fourteenth Report of Session 2002–03 (HL Paper 132, HC 142, para. 53. According to NIHRC’s 2002 Annual Report, it was able to support only 7 of 54 applications received: ibid. 106 For example, see evidence submitted by JUSTICE, Liberty, BIHR, the Law Society and others to the JCHR and published in its two reports, n. 3 above, and summarised at paras. 62 and 65 of Commission for Equality and Human Rights: Structure, Functions and Powers. 107 Commission for Equality and Human Rights: Structure, Functions and Powers, Eleventh Report of Session 2003–04, op cit., paras. 36–39. 108 Fairness for All: A New Commission for Equality and Human Rights, op cit., paras. 7.11–7.17, our emphasis. 109 Ibid., paras. 4.11–4.13. 110 Commission for Equality and Human Rights: Structure, Functions and Powers, Eleventh Report of Session 2003–04, op cit., para. 79. The NIHRC intervened nine times in 2002–03, while it did not take any cases in its own name (Annual Reports available at http://www.nihrc.org/ ). The DRC intervened in X & Y v East Sussex County Council (n. 33) and is also doing so in cases relating to withdrawal of medical treatment. 111 Fairness for All: A New Commission for Equality and Human Rights, op cit., para. 3.5.
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obligation on public authorities to act compatibly with the rights enshrined in the HRA and to interpret legislation so that it is compatible with these rights”.112
On the question of whether to maintain CEHR’s support if the statutory discrimination points fall away in a such cases, the White Paper specifically seeks advice.113 Although there is no evidence to suggest that this will be more than a very infrequent occurrence, the credibility of CEHR would arguably be diminished if it did not have the discretion to continue to support such cases. We think this argument is reinforced by the existing equality commissions’ expressed frustration at not being able fully to use HRA in their work.114
3.3 Judicial review
The White Paper declines to confer a power for CEHR to seek judicial review in its own name. Correctly, it draws attention to the lack of facility in either the European Court of Human Rights, the European Court of Justice, or our own domestic courts to hear “abstract” test cases.115
Nevertheless, wherever CEHR has “sufficient interest” (as decided by the courts) it will be able, under existing law, to challenge unlawful action by public authorities in relation to discrimination via judicial review, as the existing equality commissions have done. This avenue of challenge is not, however, available to CEHR in relation to 'free-standing' human rights breaches as a consequence of the 'victim test' set by section 7 HRA 1998116. The real issue arising, therefore, is whether, to create a statutory exception to the scheme of HRA 1998 to permit CEHR this facility.
The JCHR’s report expressed concern that, unless such exception is made, CEHR will be prevented from pre-empting breaches of individuals’ rights where potential violations are uncovered through its own enquiries, an outcome the Committee would find “indefensible" 117.
While the JCHR concludes that there is “no currently identifiable pressing need that would be met by allowing the commission power to initiate proceedings in its own name alleging a [past] breach of the rights of an individual,” it nevertheless suggests that CEHR should be empowered to seek judicial review in relation to “actions, failures to act or policies or rules” of public authorities breaching or threatening breach of human rights. Correspondingly it recommends a power “notwithstanding… sections 7(3) and (4) HRA” in such eventuality.118 This is a persuasive argument if applied in the context of potential abuses uncovered through CEHR's own enquiries (see below), especially if the power to take judicial review was subject to the limits the JCHR has suggested.
112 ibid., para. 4.18. 113 ibid., p. 16. 114 The Disability Rights Commission has a reserved power under Disability Rights Commission Act 1999 (see s.7(1)(b)) to assist individuals in cases relying on HRA 1998 , though this has never been activated by the necessary Ministerial order; the Commission for Racial Equality also asked for the power to use HRA 1998 in its casework: see evidence of the equality commissions in the JCHR’s report, The Case for a Human Rights Commission: Interim Report, Twenty- second Report of Session 2001–02 (HL Paper 160, HC 1142), Ev 45 et seq. 115 Fairness for All: A New Commission for Equality and Human Rights, op cit., para. 4.43. 116 Under s.7(3) HRA 1998, an applicant for judicial review “… is to be taken to have a sufficient interest … only if he is, or would be, a victim of that act" (s.7(4) provides likewise for petitions in Scotland); s.7(7) defines a “victim” according to the test set by Art. 34 ECHR. 117 Commission for Equality and Human Rights: Structure, Functions and Powers, Eleventh Report of Session 2003–04, op cit., para. 91. 118 Ibid., para. 89.
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3.4 Alternative dispute resolution
The White Paper advocates conciliation services as a potentially “more accessible and less expensive alternative to litigation and tribunals”.119 It therefore proposes empowering CEHR to facilitate their arrangement in the discrimination context, and for “discrimination cases with a human rights dimension”. “[F]ree-standing” human rights cases are however excluded, “[c]onsistent with the approach proposed for supporting HRA litigation”.120 JCHR, in contrast, has taken the view that “a general power to support alternative dispute resolution … would be a valuable ancillary to the commission’s general duty to promote a culture of respect for human rights”.121 Seen as an alternative to litigation, and provided that any extension of relevant services to include human rights is discretionary, there is merit in this argument.
4. General and named investigations
Like the JCHR, we strongly welcome the proposed power to conduct general investigations cutting across equality and human rights issues of public interest, which exceeds the cumulative powers of the existing commissions both in its human rights and equality dimensions.122 We would identify three further issues in this area.
4.1 General inquiries: power to compel information
CEHR will have a power to carry out general enquiries into any human rights matter touching the public interest whether or not statutory discrimination, or indeed wider equality issues, are also engaged. The goal of such enquiries will be "to develop and promote improved practice in response to particular areas of concern.”123 We strongly welcome this power.
The White Paper proposes that if, in the course of a general inquiry, a request by CEHR to provide information is unsuccessful, CEHR will be able “as a last resort” to apply to the Secretary of State for permission to compel the relevant body to comply.124 The JCHR has observed that merely having that power at CEHR’s disposal ought to be sufficient to secure wide cooperation. Should CEHR, in spite of this, face obstruction, the JCHR recommends that CEHR’s access to information should be enforceable by the courts125. As the JCHR highlights, most general enquiries concerning human rights are likely to concern or implicate government departments or other public authorities, rendering ministerial control of this power inappropriate, and potentially breaching the Paris Principles.126 This argument is persuasive.
119 Fairness for All: A New Commission for Equality and Human Rights, op cit., para. 4.20. 120 Ibid., para. 4.22. 121 Commission for Equality and Human Rights: Structure, Functions and Powers, Eleventh Report of Session 2003–04, op cit., para. 71. 122 The current commissions lack power to conduct cross-strand equality investigations, which CEHR will have. There is also a welcome new power to develop formal Codes of Practice across all six equality strands, although it is not proposed to extend this to human rights. 123 Fairness for All: A New Commission for Equality and Human Rights, op cit., para. 4.3. 124 Ibid., para. 4.6. 125 Commission for Equality and Human Rights: Structure, Functions and Powers, Eleventh Report of Session 2003–04, op cit., para. 60. 126 JCHR, Call for Evidence, Commission for Equality and Human Rights: Structure, Functions and Powers, 8 June 2004., Methods of Operation: "(b) Within the framework of its operation, the national Institution shall hear any person and obtain any information and/or documents necessary for assessing situations falling within its competence."
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4.2 General investigations: follow-up
We would again register,127 in line with the JCHR’s conclusion,128 our concern that CEHR should be able to address, and if necessary publicly name, individual bodies that it identifies during the course of a general investigation, at least where its own positive obligations as a public authority under s.6 HRA 1998 are in play (for example, where the right to life is engaged). The legal frameworks governing investigations by the existing equality commissions already set close restrictions on disclosure of information received for that purpose.129 If carried forward (as the White Paper appears to imply) these, in combination with protection available under HRA 1998 itself, should provide adequate protection for any confidentiality or other pressing interests that identifying an individual might put at stake.
4.3 Named investigations: initiation
We second the JCHR’s view that it is unnecessary, and would appear to run contrary to CEHR’s independence, to provide that CEHR must as opposed to may, investigate a matter at the Secretary of State’s request.130
4.4 Named investigations: human rights follow-up
The White Paper proposes a power to conduct “named investigations” into serious, unlawful acts of discrimination or harassment (on reasonable suspicion); and into compliance with non-discrimination notices and binding agreements.131 Carrying forward existing equality commissions’ powers, during the course of such investigations CEHR will have the competence, enforceable by the courts, to obtain information from the relevant body. CEHR will not, however, have a power to launch named investigations into alleged breaches of human rights.
The JCHR’s previous report clearly supported this position, and we concur.132 But as that report pointed out, “Most inquiries into equality matters are likely to throw up human rights concerns”. Consequently, the JCHR recommended that where CEHR identified human rights breaches in the course of a formal inquiry, “it should have the power to identify the actual or potential violations occurring and to make recommendations as to changes in practice or in the law which it considered necessary or desirable.”133
It is important that human rights matters should not be excluded from CEHR’s follow-up action to named investigations. This would be artificial and would directly contradict CEHR’s general duty to promote human rights. CEHR should therefore be clearly permitted to include reference to human rights concerns in reports and recommendations transpiring from named investigations, notwithstanding that these would be non-binding, unlike the
127 See our Memorandum submitted to the JCHR’s last report: footnote 104, Ev 45, para. 4, Human Rights Investigations. 128 Commission for Equality and Human Rights: Structure, Functions and Powers, Eleventh Report of Session 2003–04, op cit., para. 54. 129 See for example s.52 Race Relations Act 1976. 130 Fairness for All: A New Commission for Equality and Human Rights, op cit., para. 4.5, c.f. Commission for Equality and Human Rights: Structure, Functions and Powers, Eleventh Report of Session 1003–04, op cit., para. 55. 131 Ibid., paras. 4.24–4.39. 132 Commission for Equality and Human Rights: Structure, Functions and Powers, Eleventh Report of Session 2003–04, op cit., paras.50–51. 133 Ibid., para. 54.
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corresponding equality terms. Nor should human rights be excluded from binding agreements, or action plans, where the named person is in agreement.134
5. Other outstanding issues
5.1 Accountability
We concur with the JCHR’s recommendations for a greater degree of independence and parliamentary accountability and involvement than inscribed in the White Paper at present.135 We would also draw the Committee’s attention to The Abuja Guidelines on the Relationship Between Parliaments, Parliamentarians, and Commonwealth Human Rights Institutions.136 These emphasis the need for strong working relationships between national human rights institutions and parliaments. Of particular interest in this context are guidelines that require, “an appropriate role for parliamentarians in the appointment and removal of human rights commissioners”; that the proposed budget “should be submitted directly to parliament for vetting and approval”; and that “Parliament should ensure that adequate resources and facilities are provided to [the national human rights institution] to enable it to perform its functions effectively.” The Guidelines also recommend that commissions should have the function of providing briefing and training specifically for parliamentarians; we hope JCHR will make clear its support for this.
5.2 Duty to consult stakeholders
A new duty to consult stakeholders on CEHR’s strategic plans is already proposed by the White Paper.137 We strongly welcome this. We also note that organisations including Age Concern endorse a wider duty, to involve and facilitate the participation of excluded and vulnerable groups.138 The proposal to establish a cEHR presence in each of the nine English regions, and in Scotland and in Wales, which we strongly welcome, should facilitate such participation.
5.3 Express statutory provision for incidental and ancillary powers
The NIHRC faced early difficulties in establishing the scope of its legal mandate. It was, for example, forced to litigate to determine its ability to intervene in court proceedings on human rights grounds, when this was challenged on the basis that neither its express nor implied powers comprised this capacity. Although he House of Lords139 later found in NIHRC’s favour, and an express power to intervene in human rights cases is proposed by the White Paper, precautions should be taken to preclude CEHR’s exposure to similar confusion on other grounds and the costly consequences of this.
134 See further our Memorandum, Commission for Equality and Human Rights: Structure, Functions and Powers, op cit., Ev 45, para. 4 and Conclusion. The proposal to extend the power to enter into a ‘binding agreement,’ which currently only pertains to the DRC, across all six equality strands is another welcome innovation. 135 Commission for Equality and Human Rights: Structure, Functions and Powers, Eleventh Report of Session 2003–04, op cit., paras.108–143. 136 http://www.britishcouncil.org/governance-national-human-rights-institutions-and-legislatures.doc. 137 Fairness for All: A New Commission for Equality and Human Rights, op cit., paras. 2.10–11. 138 C. Collins , Public Involvement and the CEHR, Age Concern Report, June 2004. 139 In Re Northern Ireland Human Rights Commission (Northern Ireland) [2002] UKHL 25.
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As a solution in its own case, the NIHRC proposed that, alongside greater specificity throughout the legal description of its powers, a further, new power should be legislated to confer on it, using express words, all the powers “reasonably incidental to or consequential upon” its other express powers.140 The government later accepted this recommendation.141 In this light we support bestowing this power on CEHR from the outset.
8 July 2004
140 Report on Effectiveness, NIHRC Report to the Secretary of State required by s69(2) of the Northern Ireland Act 1998 (February 2001), accessible at http://www.nihrc.org/ . 141 See footnote 105, para. 62.
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10. Memorandum from the Institute for Public Policy Research
The Institute for Public Policy Research is a registered charity established in 1988 to contribute to public understanding of social, economic and political questions through research, discussion and publication.
IPPR welcomes the White Paper’s proposals. We have long argued the case for institutional arrangements to support equality and human rights142 and continue, through our representation on the Government’s task force and membership of the Equality and Diversity Forum, to contribute to policy developments in this area.143
SUMMARY
We recognise the achievement of integrating human rights and equality within a single commission, which also provides for free-standing human rights powers. Since it came into force, the impact of the Human Rights Act has been principally in the courtroom rather than in society. The fact that the CEHR will be enabled to promote human rights principles for wider social justice purposes provides an opportunity to develop a culture of respect for human rights within public services and offer greater protection for those who need it. The Commission will also work to achieve fuller understanding and acceptance across civil society of the benefits of diversity, the equity of equality and the role for human rights in encouraging civic engagement.
INDEPENDENCE AND ACCOUNTABILITY
The CEHR will qualify internationally as a national human rights institution and its constitution should exemplify best practice under the Paris Principles.144 We therefore endorse the several recommendations made by the Joint Committee on Human Rights in its recent report on the Commission’s relationship with government and with parliament, which aim to achieve sufficient independence from governmental influence and greater democratic legitimacy.145 We also urge the Government to provide sufficient resources for the new commission so that it can be set up genuinely to succeed.
SINGLE EQUALITY ACT AND POSITIVE DUTY TO PROMOTE EQUALITY FOR ALL
The concern remains, however, that while institutional arrangements are being put in place to pursue a vision of equality for all, the underlying legislation does not support that vision. The consequence is that the legal reality undermines the inspiring rhetoric and will reduce the effectiveness of the Commission. Because the proposed enforcement powers will only be available in some but not all cases of discrimination, this will foster hierarchies of inequality among people experiencing discrimination. The situation is historically explicable but without current justification and needs to be remedied as soon as parliamentary time allows.
In addition, we urge the Government to extend the positive duty framework beyond race, disability and (as the White Paper has promised) gender. The advantages of the “positive
142 See e.g. Spencer/Bynoe, A Human Rights Commission: The Options for Britain and Northern Ireland, IPPR 1998 143 We are currently researching the uses of human rights within the voluntary sector (particularly outside a litigation context) and will publish our findings on 10 December 2004 144 Paris Principles, General Assembly Resolution 48/134 of 20 December 1993 145 Commission for Equality and Human Rights: Structure, Functions and Powers, JCHR 11th Report, session 2003–04, HL Paper 78 HC 536
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duty” approach are now widely recognised.146 We have learned from thirty years of anti- discrimination legislation that the burden needs to be shifted from individuals asserting their rights to organisations implementing institutional change. Employers and providers of services have acknowledged the advantages of single and simple messages enabling them to take a unified approach to compliance and best practice. Inconsistent statutory duties on equality will discourage organisations from making the necessary cultural changes and inhibit the ability of the Commission to encourage them to do so.
CEHR: HUMAN RIGHTS FUNCTIONS
The human rights remit needs to be sufficient to ensure that the CEHR can act strategically and effectively.
Promotion in order to achieve Protection
We welcome the statement that “the goal will be to move from bare compliance with the HRA to using good human rights practice as a way to improve service provision” (White Paper para 3.11). We are concerned, however, that the underlying purpose of this work has not been expressed. The reason why service providers need to adopt human rights thinking is so that they can avoid and prevent poor treatment of service users and the potential breach of their human rights. The real goal, therefore, is to achieve the protection of people’s human rights and the CEHR will seek to do this by encouraging service providers to adopt a positive approach towards the protection of human rights. Because prevention generally works better than cure, the CEHR will focus on promotional and educative strategies but it must not lose sight of the ultimate goal.
We urge the Government to make this clear in the legislation. Adapting the thinking of the JCHR on this147 and to ensure compliance with the Paris Principles 148 we recommend that the CEHR be under the following statutory duty:
The Commission shall promote understanding of and respect for, and help secure the protection of, human rights.
Statutory Definition of “Human Rights”
“Public authorities” (which include the government and the courts but not parliament) are subject to the Human Rights Act. The government has also assumed treaty obligations under various international human rights instruments, although they have not been incorporated into domestic law. The way in which the Commission will go about meeting its statutory duty in relation to human rights will necessarily be subject to this underlying legal regime and to the powers that it has at its disposal. In our view, therefore, it is not desirable to attempt a purposive definition of “human rights” in the legislation as seems to be implied by paragraphs 3.13 and 3.14 of the White Paper. We recommend that the CEHR’s duties in relation to “human rights” be defined in the governing statute as follows:
“Human rights” “include Convention rights (as defined in the Human Rights Act 1998) and those human rights principles set out in international treaties and covenants to which the UK is a signatory.”
146 See for example, Colm O’Cinneide, Taking equal opportunities seriously: the extension of positive duties to promote equality, Equality and Diversity Forum, January 2004 147 JCHR 11th Report para. 14 148 “A national institution shall be vested with competence to promote and protect human rights”, Paris Principles, para. 1
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CEHR: HUMAN RIGHTS POWERS
We welcome the powers proposed for the Commission to assist it in meeting its human rights responsibilities. There is a concern, however, about the disparity between the powers in relation to discrimination and those for human rights, which will create unsatisfactory complications for the Commission in situations where equality and human rights co-exist. We consider that the principle of equivalence of powers should apply as far as practicable.
General Inquiries
We believe that the Commission’s power to conduct general inquiries should be subject only to its own initiative and not to requests from the secretary of state (White Paper 4.5). The Commission must be able to set its priorities independently of government and to resist taking on responsibilities for an inquiry that may fall outside its existing strategic plans and that will divert resources from other planned action. The government will retain its own responsibilities to implement equality and human rights policies and the Commission should not be regarded as its sub-contractor on those matters.
We agree with the JCHR’s recommendation that access to information should be subject to judicial supervision.149 If, during an inquiry, the Commission wished to call a witness who expressed reluctance to attend, it would offend the principles of independence and public interest if the secretary of state were to determine whether the witness should attend or not. An application to a high court judge for a subpoena will safeguard those principles.
Named Investigations
It has been assumed that investigations into the policies and practices of particular organisations will be restricted to allegations of unlawful discrimination. As the Equal Opportunities Commission points out however, in its submission to the JCHR, there are good reasons why the Commission should be empowered to conduct a named investigation in relation to a particular “public authority” following alleged breaches of Convention rights.150 The fact that an existing commission devoted to one strand of equality and with experience of investigations supports this measure demonstrates that it deserves serious consideration by the Government. With appropriate safeguards in place, we cannot see any justification for restricting the Commission’s powers in this respect.
Judicial Review
The philosophy behind the human rights remit of the CEHR is that it should act strategically and preventatively in the public interest. To do this effectively, the Commission will need to have a set of tools available that it can (but will not be obliged to) use if necessary. We agree with the JCHR that:
… it would be an indefensible situation [if] a commission set up for the express purpose of promoting and protecting human rights was able to identify what it believed were threats to those rights, but no steps were available to it to remove those threats.151
We endorse the arguments advanced by the JCHR in favour of granting the Commission power to make an application for judicial review of administrative acts or omissions
149 Ibid., para. 60 150 Ibid., Ev 34 151 Ibid., para. 91
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relating to Convention rights.152 This will permit the Commission to seek judicial determination about systemic matters under both discrimination and human rights law and will avoid it having to resort to subterfuge.153 The use of this power will illustrate how successfully the Commission is able to maintain its independent place being neither an agent of the government, an all-purpose NGO nor a perpetual litigant, but an institution sensitive to the legitimacy of democratic processes.
Third Party Interventions
The power to intervene in litigation as a third party is an important strategic tool. The CEHR should have complete discretion over which cases it wishes to apply to intervene in within the limits of its statutory duties. It would be inappropriate to introduce any legislative language qualifying this discretion as may be implied by paragraph 4.13 of the White Paper.
Human Rights Points arising in a Discrimination Context
It is welcomed that the Commission will have particular and discrete tools at its disposal to tackle discrimination against specified categories of people, which include enforcement action as well as support for employers and service providers in complying with anti- discrimination law. It may often be the case that a Convention point will arise in the course of this work where it involves organisations with responsibilities under the Human Rights Act. The question is what the Commission will be empowered to do in that situation. In our view, it would be bizarre and unjustifiably restrictive for the Commission not to be permitted to address it. We therefore recommend that the CEHR have the following powers:
• In a combined discrimination and human rights case, to continue supporting the case after the discrimination point has fallen away (paras 4.18 and 4.19)
• If named investigations are limited to discrimination allegations only, to have the power (in the case of investigations into “public authorities”) to include: findings which emerge on Convention rights in its report; proposals for remedying alleged breaches of Convention rights in non-discrimination notices, action plans and binding agreements; and reliance on the relevant Convention right in applications for injunctions (paras 4.24 to 4.39).
• When publishing statutory codes of practice, to be able to include information and guidance on compliance with recent court decisions clarifying the responsibilities of public authorities under the Human Rights Act (paras 4.7 to 4.10)
Settling Disputes
The White Paper states that “consistent with the approach for supporting HRA litigation, it is not envisaged that the CEHR’s conciliation service will be available for free-standing HRA cases (para 4.22). We believe that it would be wrong to exclude disputes raising human rights points from the Commission’s powers to support conciliation services and that the Government should leave the matter to the Commission’s discretion.
152 Ibid., paras. 81–93 153 For example, without this express power, the Commission will not be able to refer to a Convention right point on the face of its judicial review application but the court, as a Section 6 public authority, will itself be under a duty to raise and consider it.
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The ban on the Commission supporting individuals in their HRA litigation should not be extended to (or confused with) supporting individuals in resolving disputes about their rights. In fact, it reveals an inconsistency of approach within government. In the chapter on promoting good community relations, the White Paper describes the CEHR’s human rights remit as “providing tools and concepts to help find solutions in areas where rights may conflict.” (White Paper para 6.5) The CEHR’s function should be to promote this utilitarian vision of human rights across society as a whole. Disputes about whether a care home should be closed or whether a council should intervene where there are noisy neighbours do not necessarily require judicial scrutiny before they can be resolved. We agree with the JCHR that a general power to support ADR “approaches to allegations of breaches of human rights by public authorities would be a valuable ancillary to …the duty to promote a culture of respect for human rights”.154
ENGAGING AND WORKING WITH STAKEHOLDERS
Chapter 7 of the White Paper identifies “individuals, businesses and the public sector” as the three “key customers” of the CEHR and invites comments on how they should be supported. Elsewhere in the White Paper there is reference to the importance of the voluntary sector and community groups as “key partners” of the CEHR.155 In our view, not to recognise and include this sector as a “key customer” is to misunderstand the potential for voluntary and community action in pursuit of greater equality and respect for human rights. This is particularly significant since the Commission will not be supporting individuals in bringing cases on human rights grounds and this will allow other strategies to be pursued.
VOLUNTARY AND COMMUNITY SECTOR
Where the voluntary sector represents users, it has the potential to fulfil an important function at the local level in encouraging service providers to meet their legal obligations. Voluntary organisations should be able to do this by using human rights and equality principles in specific negotiations with public authorities and in their policy and campaigning work. As the JCHR concluded:
We see this as an essential part of the systemic work needed to develop a culture of respect for human rights and as complementary to advising individuals on their human rights and how to assert them.156
Representatives of users should work with service providers to prevent violations occurring and try to resolve them quickly when they do. But as the IPPR has discovered during its recent research on this issue, the barriers to progress are widespread lack of knowledge and understanding within the voluntary sector of the relevance of human rights principles. The consequence has been that marginalised and vulnerable people with the most to gain in terms of protection of their rights have been effectively excluded from the benefits of the legislation. The establishment of the CEHR is an opportunity to remedy this.
In order to operate strategically, the CEHR will need to develop relationships with networks, coalitions and umbrella organisations in the voluntary and community sector with the ultimate aim of reaching the people who are often the hardest to reach. The engagement should go beyond consultation designed to help define the CEHR’s own priorities (para 7.3).
154 JCHR 11th Report, para. 71 155 White Paper, paras. 1.34, 2.6, 7.3 and 8.9 156 JCHR 11th Report, para. 35
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The Commission should encourage collaborative working between the voluntary and public sectors using existing channels of communication. These include mechanisms like the community cohesion strategy, local strategic plans and the NHS framework for older people. The Commission’s role will be to contribute equality and human rights thinking to these initiatives.
The IPPR research has so far identified the following action that the CEHR will need to take to support the voluntary and community sector:
Information provision
The voluntary sector have had little or no information about the relevance of human rights other than to warn them of potential responsibilities when they are providing services. The CEHR will need to be proactive in remedying the voluntary sector’s lack of capacity, as the White Paper recognises (para 2.6).
Case studies
The CEHR will have to give definition to Convention rights and the underlying principles and how they might be applied. For example, what practices constitute “degrading treatment” of vulnerable people? Case studies should refer to practical scenarios where human rights problems have been resolved as well as referring to court decisions clarifying the law. Sufficiently disseminated, case studies will be an important resource and should decrease the need to bring cases.
Informal best practice codes
Participants in our project have highlighted examples where collaborative working between NGOs and the public sector can lead to changes in practices. These can be incorporated into informal codes and disseminated more widely. For example, encouraging schools to avoid serving free school meals separately which stigmatises the children receiving them.
Guidance on staff training
Training on equality and human rights needs to reach front-line staff so that there is greater association between problems occurring and the potential applicability of human rights principles to them.
PROVIDERS OF PUBLIC SERVICES
In view of the evidence about the lack of understanding of human rights responsibilities within public authorities,157 the Commission will have to employ similar techniques to those described above to support the public sector. In the foreword to the White Paper, the prime minister, Tony Blair said:
We cannot achieve our vision of high quality public services for all if those services do not respect individuals’ rights to dignity, privacy and respect.
The CEHR’s role will be to take this message from the heart of government to other Whitehall departments and to public authorities in the regions. But the Commission will have to work on giving some specificity to these fundamental values so that public authorities can apply them in practice.
157 Audit Commission, Human Rights: Improving the delivery of public services, 2003
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We see, however, two particular problems, which may undermine the effectiveness of the CEHR’s work with the providers of public services.
Meaning of Public Authority
The first problem is the lack of clarity in the meaning of “public authority” for the purposes of Section 6 of the Human Rights Act. The CEHR needs to know when it is informing organisations about their compliance with the law and when it is suggesting that they adopt best practice measures. More importantly, the law unfairly discriminates against users of services because their entitlement to human rights protection depends on the status of the provider rather than, as it should do, the nature and quality of the services. We endorse the recommendations of the JCHR in their recent report158 and urge the Government to take action to remedy this continuing injustice.
Positive Duty to Promote Human Rights
The JCHR has considered the impact of the Human Rights Act on the public sector and found that there is a “need for greater focus by public authorities on their positive obligations to protect human rights” and that “the statutory requirement to act compatibly with human rights is not enough on its own”.159 The Joint Committee concluded:
… we are now persuaded by the evidence that imposing a “positive” or “general” duty on public authorities to promote human rights will be an effective way of advancing this.160
We are concerned that the Commission will have difficulty is giving a clear message to public authorities about their “positive obligations” without statutory definition and that a positive duty will underpin the Commission’s own function of promoting human rights.
PRIVATE SECTOR BUSINESSES
We welcome the proposals for the CEHR’s engagement with private sector businesses. They correspond with the conclusions reached in the IPPR report on the work of the Race Equality Task Force.161 In particular, the CEHR will need to demonstrate the benefits of diversity, differentiate between large and small businesses, work in partnership with trade associations, professional bodies and regional and local networks, avoid confusion between promotional guidance and enforcement action, and provide sector-specific expertise on all aspects of equality and diversity.
July 2004
158 The Meaning of Public Authority under the Human Rights Act, JCHR 7th report, Session 20003–04, HL Paper 39, HC 382 159 JCHR 11th Report, paras. 32 and 29 160 Ibid., para. 32 161 Race Equality: The Benefits for Responsible Business, Task Force on Race Equality and Diversity in the Private Sector, IPPR July 2004, ISBN: 1 86030 249 1
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Reports from the Joint Committee on Human Rights since 2001
The following reports have been produced
Session 2003–04
First Report Deaths in Custody: Interim Report HL Paper 12/HC 134
Second Report The Government’s Response to the Committee’s HL Paper 13/HC 135 Ninth Report of Session 2002-03 on the Case for a Children’s Commissioner for England
Third Report Scrutiny of Bills: Progress Report HL Paper 23/HC 252
Fourth Report Scrutiny of Bills: Second Progress Report HL Paper 34/HC 303
Fifth Report Asylum and Immigration (Treatment of Claimants, HL Paper 35/HC 304 etc.) Bill
Sixth Report Anti-terrorism, Crime and Security Act 2001: HL Paper 38/HC 381 Statutory Review and Continuance of Part 4
Seventh Report The Meaning of Public Authority under the Human HL Paper 39/HC 382 Rights Act
Eighth Report Scrutiny of Bills: Third Progress Report HL Paper 49/HC 427
Ninth Report Naval Discipline Act 1957 (Remedial) Order 2004 HL Paper 59/HC 477
Tenth Report Scrutiny of Bills: Fourth Progress Report HL Paper 64/HC 503
Eleventh Report Commission for Equality and Human Rights HL Paper 78/HC 536 Structure, Functions and Powers
Twelfth Report Scrutiny of Bills: Fifth Progress Report HL Paper 93/HC 603
Thirteenth Report Scrutiny of Bills: Sixth Progress Report HL Paper 102/HC 640
Fourteenth Report Asylum & Immigration (Treatment of Claimants, etc.) HL Paper 130/HC 828 Bill: New Clauses
Fifteenth Report Civil Partnership Bill HL Paper 136/HC 885
Session 2002–03
First Report Scrutiny of Bills: Progress Report HL Paper 24/HC 191
Second Report Criminal Justice Bill HL Paper 40/HC 374
Third Report Scrutiny of Bills: Further Progress Report HL Paper 41/HC 375
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Fourth Report Scrutiny of Bills: Further Progress Report HL Paper 50/HC 397
Fifth Report Continuance in force of sections 21 to 23 of the Anti- HL Paper 59/HC 462 terrorism, Crime and Security Act 2001
Sixth Report The Case for a Human Rights Commission: Volume I HL Paper 67-I Report HC 489-I
Seventh Report Scrutiny of Bills: Further Progress Report HL Paper 74/HC 547
Eighth Report Scrutiny of Bills: Further Progress Report HL Paper 90/HC 634
Ninth Report The Case for a Children’s Commissioner for England HL Paper 96/HC 666
Tenth Report United Nations Convention on the Rights of the HL Paper 117/HC 81 Child
Eleventh Report Criminal Justice Bill: Further Report HL Paper 118/HC 724
Twelfth Report Scrutiny of Bills: Further Progress Report HL Paper 119/HC 765
Thirteenth Report Anti-social Behaviour Bill HL Paper 120/HC 766
Fourteenth Report Work of the Northern Ireland Human Rights HL Paper 132/HC 142 Commission
Fifteenth Report Scrutiny of Bills and Draft Bills: Further Progress HL Paper 149/HC 1005 Report
Sixteenth Report Draft Voluntary Code of Practice on Retention of HL Paper 181/HC 1272 Communications Data under Part 11 of the Anti- terrorism, Crime and Security Act 2001
Seventeenth Report Scrutiny of Bills: Final Progress Report HL Paper 186/HC 1278
Eighteenth Report The Government’s Response to the Committee’s HL Paper 187/HC 1279 Tenth Report of Session 2002-03 on the UN Convention on the Rights of the Child
Nineteenth Report Draft Gender Recognition Bill Vol I: Report HL Paper 188-I/HC 1276-I
Nineteenth Report Draft Gender Recognition Bill Vol II: Evidence HL Paper 188-II/HC 1276-II
Session 2001–02
First Report Homelessness Bill HL Paper 30/HC 314
Second Report Anti-terrorism, Crime and Security Bill HL Paper37/HC 372
Third Report Proceeds of Crime Bill HL Paper 43/HC 405
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Fourth Report Sex Discrimination (Election Candidates) Bill HL Paper 44/HC 406
Fifth Report Anti-terrorism, Crime and Security Bill: Further HL Paper 51/HC 420 Report
Sixth Report The Mental Health Act 1983 (Remedial) Order HL Paper 57/HC 472 2001
Seventh Report Making of Remedial Orders HL Paper 58/HC 473
Eighth Report Tobacco Advertising and Promotion Bill HL Paper 59/HC 474
Ninth Report Scrutiny of Bills: Progress Report HL Paper 60/HC475
Tenth Report Animal Health Bill HL Paper 67/HC 542
Eleventh Report Proceeds of Crime: Further Report HL Paper 75/HC 596
Twelfth Report Employment Bill HL Paper 85/HC 645
Thirteenth Report Police Reform Bill HL Paper 86/HC 646
Fourteenth Report Scrutiny of Bills: Private Members’ Bills and Private HL Paper 93/HC 674 Bills
Fifteenth Report Police Reform Bill: Further Report HL Paper 98/HC 706
Sixteenth Report Scrutiny of Bills: Further Progress Report HL Paper 113/ HC 805
Seventeenth Report Nationality, Immigration and Asylum Bill HL Paper 132/ HC 961
Eighteenth Report Scrutiny of Bills: Further Progress Report HL Paper 133/ HC 962
Nineteenth Report Draft Communications Bill HL Paper 149 HC 1102
Twentieth Report Draft Extradition Bill HL Paper 158/ HC 1140
Twenty-first Report Scrutiny of Bills: Further Progress Report HL Paper 159/ HC 1141
Twenty-second The Case for a Human Rights Commission HL Paper 160/ Report HC 1142
Twenty-third Nationality, Immigration and Asylum Bill: Further HL Paper 176/ Report Report HC 1255
Twenty-fourth Adoption and children Bill: As amended by the HL Paper 177/ Report House of Lords on Report HC 979
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Twenty-fifth Report Draft Mental Health Bill HL Paper 181/ HC 1294
Twenty-sixth Report Scrutiny of Bills: Final Progress Report HL Paper 182/ HC 1295